2003 (7) TMI 334

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....P. Baxi, Advocate, for the Respondent. [Order per : Gowri Shankar, Member (T)]. - The appeal is against the order of the Commissioner (Appeals) holding that the respondent was entitled to be refunded the duty of excise which it paid in excess on the glass filament that it manufactured and cleared and setting aside the order of the Asstt. Commissioner. Order in the refund to be credited to th....

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....was not liable to duty is "strong reason" to hold that the incidence of duty has not been passed on. 3. The Bombay High Court's judgment in Solar Pesticides is no longer good law, having been overturned by the Supreme Court on appeal by the Union [2000 (116) E.L.T. 401]. We are not able to accept the other basis of the Commissioner (Appeals)'s conclusion. The fact that the final product of....

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....vation is to be read with the provisions of sub-section (2) of Section 11B. It is therefore required to be proved by the manufacturer that the incidence of duty had not been passed on and "strong reason" is no substitute for this. 4. Counsel for the respondent then raised a point that the refund became due as a result of finalisation of provisional assessment and by virtue of paragraph 95 ....

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....e does not rely upon any documents that were not in possession of the department. He is therefore entitled to make that claim. Since the other documents in support of the claim has not been produced before and the claim made before us is for the first time we think it appropriate to remand the matter to the Deputy/Asstt. Commissioner. That authority after considering the submissions that the Couns....