2007 (10) TMI 117

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....ppeal The brief facts of the case are that the respondents M/s Cummins India Ltd. had cleared inputs at higher prices and debited the duty only equivalent to the credit availed by them. Therefore a show cause notice dated 21-2-1991 was issued to them seeking to demand differential duty of Rs. 1,11,689;93 which was confirmed by the Assistant Commissioner. On appeal, the same was rejected by the Com....

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....e customers and has observed that the department cannot presume that the incidence of duty has been passed on to the customers. The Commissioner (Appeals) ignored that the said amount has been shown by the respondents as expenditure in their Profit and Loss Account and therefore it has to be held that the same has been recovered from the customers being part of cost of production. It was also subm....

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....aid during the pendency adjudication which was never recovered from the customers. The goods initially were cleared by debiting amount of credit taken on the inputs as such and the same amount has been recovered from the customers. It is not the case of the department that the duty recovered from the customers in the invoices is more than that what has been paid to the department. In such a situat....

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....y was already recovered without reference to any notional interest on advances. The same should have been established to have been recovered from the customers. Attention was also invited to the decision of the Madras High Court in the case of CCE, Coimbatore v. Flow Tech Power - 2006 (202) E.L.T. 404 (Mad.) wherein the additional duty paid as deposit was shown as expenditure in the Profit and Los....