TaxTMI 
TaxTMI 
2011 (5) TMI 787
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.... filed by the appellants against the order of the Deputy Commissioner, Pune dated 2-7-2002 has been rejected. The controversy in the matter relates to refund claim filed by them. 3. The appellants are engaged in the manufacture of electrical wires & cables. The scrap of wires and cables generated in the process of manufacture of the final product was contended to be non-excisable commodity by the appellants whereas the same was disputed by the department. It is the contention of the appellants that the controversy in that regard was finally resolved by the order of the Commissioner (Appeals) dated 17-2-1992 in favour of the appellants. It is the further case of the appellants that since at the insistance of the department the appellan....
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....upon the customers. To the specific query as to whether any material on record in support of the said contention and of the fact that the duty element was not transferred to the customer, the representative of the appellants fairly conceded that there is no other material placed on record except the invoices. 5. Whether the duty element was transferred upon the customer or not is essentially a question of fact and in order to sustain the refund claim even in relation to the duty which was paid in excess of duty or even in cases where the payment was without any obligation to pay the duty, it is absolutely necessary for the assessee filing refund claim to establish that the amount so paid by the appellants as duty, to establish that th....
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.... being deposited by reducing their profit margin." In other words, the assessee in Nicco Corporation's had satisfied the Tribunal based on the facts of that case that the profit margin subsequent to the authoritative pronouncement of non-dutiability of the product was established by placing evidence which could reveal reduction in the profit margin after such authoritative pronouncement regarding the non-dutiability of the product. Undoubtedly, the Tribunal had also referred to the decision of the Supreme Court in Sinkhai Synthetics & Chemicals Pvt. Ltd. However, the order does not disclose in what way the said decision of the Supreme Court was applicable to the facts of the case of Nicco Corporation. Perusal of the decision of the Supreme ....