2010 (6) TMI 356

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.... 1 of the paper book. The respective paragraph of the show cause notice is reproduced below for appreciation of claim of refund. "The Noticee vide their letter dated 7-4-04 filed refund claim of Rs. 3,03,507/- on the ground that during the period 1-4-03 to 19-2-2004, they paid duty on animal fat @ 50% of duty leviable under Section 3 of Central Excise Act i.e. 50% of 15% Basic Excise duty and 50% of 4% of SAP which otherwise was payable at 30% of 15% Basic Excise duty and 30% of 4% SAD as provided vide Sr. No. 4 of the Notification No. 23/03-CEx. Dated 31-3-2003. The Noticee mentioned that they have been informed by their buyers that higher duty is charged by them. It has been mentioned that their buyers have not claimed cenvat." 2.&#....

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....alance sheet as on 31-3-2004. He submitted that certain claim having bean made with the Revenue is depicted as "claim receivable" i.e. corroborated by para 12 of the notes to accounts appearing at page 41 of volume 1 of the paperbook. 3. Citing all the aforesaid documents, his argument is that when these documents shall speak that the appellant has not passed on the duty liability to the buyers. This is not a case for unjustly enriching the appellant. Therefore, the adjudicating authority has rightly passed the order to grant refund. Such an adjudication order was reversed by ld. Appellate authority for no reason and without examination of the aforesaid evidence. Therefore, the first appellate order should be set aside and there sh....

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....2009 (14) S.T.R. 301 (Kar.) noticed that when the Tribunal held that since the assessee issued credit notes towards refund of service tax, relying upon Apex Court judgement in Mohd. Ekram Khan & Sons v. Commissioner of Trade Tax - 2004 (6) SCC 1083-SC the Revenue's appeal was liable to be dismissed. 7. Hon'ble High Court of Rajasthan in the case of Union of India v. A.K. Spintex Ltd. reported in 2009 (234) E.L.T. 41 (Raj.) held that passing on the burden of excise duty to the next purchaser, can not be left in the realm of presumption. In cases, where the assessee is able to show, that the burden is not passed on, or it has been reversed, the claim of refund cannot be denied discarding revenue's argument that mechanism of issuance ....