2015 (6) TMI 153

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....s. 2. The relevant facts of the case, in brief, are that the appellants were engaged in the construction of Turbine Building, CCW Plant, Pump Houses etc. as per agreement with Nuclear Power Corporation Limited, a Government of India Enterprises. The appellant received fusion bonded Epoxy Coating of Re-Inforcing Steel Bar from M/s. PSL Corrosion Control Services Limited, Daman (in short PSL ), who paid the Central Excise duty and cleared the said Epoxy Coated product to the appellant. There was a classification dispute, which was decided by the Tribunal vide order No. 190/2002-03 dated 28.11.2002, wherein it has been held that process undertaken by M/s. PSL does not amount to manufacture. By letter dated 12.09.2003, M/s. PSL informed that....

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.... Representative for the Revenue reiterated the findings of the Commissioner (Appeals). He submits that the appellant has not produced sufficient evidence that the incidence of duty was not passed on to the customers. It has been submitted that the appellant failed to furnish the books of accounts to substantiate that the element of duty was not included in the cost of materials and pricing of the goods. He relied upon the decision of the Hon ble Supreme Court in the case of CCE, Mumbai-II vs. Allied Photographic India Limited 2004 (166) ELT 3 (SC). 6. After hearing both the sides and on perusal of the records, I find that the manufacturer paid the duty under protest. They have requested the appellant to claim the refund as the duty eleme....

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....ll be necessary in the case, when the Auditor s certificate is not accepted as incomplete or any other reason. 7. The other aspect of this matter is that the expressions the applicant may furnish to establish , if read with the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person , in sub-Section(1) of Section 11B of the Central Excise Act, 1944, make it clear that the applicant is required to produce the evidence that the other person had not paid the duty amount to the applicant. In present case, the appellant discharged the burden by producing certificate dated 10.12.2003 from their customer namely, Nuclear Power Corporation Limited. For the purpose of proper appreciation of ....