2012 (9) TMI 777

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....n Appeal No. E/2203/10 & E/CO/146/10 on the file of the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, FKCCI-WTC Building, K.G. Road, Bangalore [2011 (274) E.L.T. 113 (Tribunal)]. 2. The respondent-manufacturers of betel nut powder (a product known as supari) were paying duty, classifying the product under Ch. S.H. No. 2107.00. They filed a revised classification list with effect from 17-7-1997 classifying the product under Ch. S.H. No. 0801.00 attracting a 'nil' rate of duty. Nevertheless, they were paying duty under protest with effect from 25-7-1997, as the assessee felt that the Department may object to clearance of the goods at 'nil' rate of duty. The Assistant Commissioner, Central Excise, Guntur Division....

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....-8-2008 proposing to reject the refund claim and eventually, the Deputy Commissioner, Central Excise, Guntur, vide order dated 29-4-2010 held that the assessees were eligible for the refund under the provisions of Section 11B of the Act but were not entitled for refund since it was not proved that the assessee had passed on the duty burden to the buyers. Consequently, the Deputy Commissioner ordered the amount to be credited to the Consumer Welfare Fund. 5. Aggrieved over the denial of refund in specie, the respondent-assessee filed an appeal before the Commissioner of Appeals, who allowed the appeal by the order dated 6-8-2010 holding (a) that assessee did pass on the incidence of the duty to the buyers/consignment agents and there....

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....idence to counteract the material produced by the assessee to disclose the passing of the duty liability to the consumer, the respondent-assessee is liable for refund. 8. It is fairly admitted by the learned counsel for the appellant herein that in case of material/evidence on record to establish the passing on of the burden of duty to the consumer, the assessee is entitled for refund of duty paid under protest or paid even though warranted by law. What the learned counsel would contend is that the substantive evidence with regard to the claim of passing of the liability of duty to the consumer or the consignment agent are the invoices in respect of the transactions and not inferences drawn from the price not having charged before a....