2008 (1) TMI 685

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....sh Shah, Advocate, for the Respondent. [Order]. -  This is revenue's appeal. The brief facts of the case are that the appellant have initially filed a refund claim for Rs. 11,25,046/- in respect of duty paid by them as per directions of the department. Appellants were clearing their goods by claiming exemption under Notification No. 4/97 dated 1-3-97 under Sr. Nos. 163 and 164. However ....

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....rder dated 23-3-2000 set aside the order by upholding that the show cause notice itself recognized that duty was paid under protest and therefore the refund cannot be denied. This order was never challenged by the revenue. Subsequently, the refund of Rs. 11,25,046/- was sanctioned by the Assistant Commissioner but later on a show cause notice was issued stating that out of this an amount Rs. 70,33....

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.... cannot taken now. 2. Revenue in its appeal has submitted that the amount of Rs. 70,333/- was never paid under protest and further contented that in view of the Apex Court decision in the case of M/s. Sahakari Khand Udyog - 2005 (181) E.L.T. 328 (S.C.), respondents have to prove that the incidence of duty has not been passed on and on their failure to do so refund cannot be sanctioned. ....