2010 (10) TMI 709

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....rozen Sea Foods under the Agricultural Produce Cess Act, 1940 (hereinafter referred to as the Act). The said Act was repealed on 25-9-2006. Though the Act was repealed, the respondent had continued to pay the cess amount and subsequently realizing their mistake, filed a refund claim of the cess paid after 26-9-2006. The said refund claim as filed by the respondent was scrutinized by the Adjudicating Authority, and a show-cause notice was issued for non-maintainability of the said refund claim. The Adjudicating Authority vide Order-in-Original No. 14/2008 (Refunds) dt. 16-6-2008 sanctioned an amount of Rs. 5,00,138/- to the respondent and credited an amount of Rs. 14,334/- to the Consumer Welfare Fund in terms of Section 27(2) of Customs Act....

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....sts including taxes paid by the exporter. 2. The Commissioner (Appeals) has erred in holding that the appellants have not adduced any evidence to prove that the respondent has passed on the incidence of Cess to their buyers, in as much as the onus to disprove un-just enrichment rests with the exporter as held in the case of M/s. Banmore Foam (P) Ltd. v. CCE, Indore, reported in 2007 (7) S.T.R. 346 (Tri. - Del) and in the case of M/s. Suburban Engg. Works (Calcutta) P. Ltd. v. CCE, Calcutta, reported in 2001 (136) E.L.T. 332 (Tri. - Kolkata). In the present case the exporter has not discharged the onus to prove that he has not passed on the duty (Cess) burden to his buyers. 4. Ld. Counsel appearing on behalf of the respondent....