2007 (6) TMI 55

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.... 12B of Central Excise Act, 1944, relying on the case of Pride Foramer v. Commissioner of Customs [2006 (200) E.L.T. 259 (Tri Mumbai)], wherein the certificate of chartered Accountant was accepted as rebuttal of the presumption, when the issue in that case was refund of security deposit whereas the question in the instant case is that of refund of Excise duty? 2. Whether the Hon'ble Tribunal was right in holding that ratio of the Apex Court's decision in the case of Commissioner v. M/s. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)] had not been correctly applied to the facts of this case by the department, when it is an admitted position of increase in prices during the disputed period and when it had been held by the Hon'....

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....e as to why their refund claim should not be restricted to Rs. 17,69,141/- and why the reduced amount should not be sanctioned and credited in the Consumer Welfare Fund. The assessee replied to the above Show Cause Notice and the Assistant Commissioner of Central Excise passed an order dated 22- 6-1998 rejecting the refund claim filed by the assessee. Aggrieved by the order, the assessee filed an appeal to the Commissioner of Central Excise (Appeals). The Commissioner of Central Excise (Appeals) rejected the appeal and confirmed the order of the Assistant Commissioner of Central Excise. Aggrieved, the assessee filed an appeal to the Customs, Excise & Service Tax Appellate Tribunal ("Tribunal" in short). The Tribunal allowed the appeal and r....

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.... the statutory in voices. Hence the ratio of the Apex Court's decision has not been correctly applied to the facts of this case by the ld. SDR. in the case of Pride Foramer (supra) cited by learned Counsel, Balance Sheets and Chartered Accountants' certificates were considered by the Tribunal and it was held that the assessee had succeeded in establishing that the burden of duty had not been passed on to their buyers. In the present case, it is not in dispute that the Chartered Accountant's certificates and books of account for the period of dispute were produced by the assessee to show that the Excise Duty paid in excess was retained as "receivables from Govt.". The lower authorities have not rebutted the authenticity of the documentary ev....