2016 (11) TMI 234

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....dent could not prove that the incidence of duty has not been passed to the customer. Aggrieved by the Order-in-Original, the appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) considering the documents submitted by the respondent before the adjudicating authority and also on the declaration of customer regarding non-passing of the incidence of duty held that the refund is admissible, accordingly the Order-in-Original was set aside. Therefore the Revenue is before us. 2. Shri V.K. Agarwal, learned Additional Commissioner (A.R.) appearing on behalf of the Revenue reiterating the grounds of the appeal submits that the learned Commissioner (Appeals) has allowed the refund considering the declaration submitt....

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....ified, which has no basis for the reason that Commissioner (Appeals) is competent enough to ask additional documents and decide the appeal after submission the document made before him. If he satisfied he is not required to get the same verified from the lower authorities.  4. We have carefully considered the submissions made by both the sides. We find that only issue is in present appeal, whether the incidence of refund has been passed on any other person or otherwise. We find that the respondent have submitted Balance Sheet, Books of Account and Chartered Accountant certificate before the adjudicating authority to the effect incidence of duty has not been passed to any other person. There is no dispute that the amount of refund clai....

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....ave been issued on 31.03.2014 and on the same day duty and interest etc. have been debited. (ii) At the time of first certificate of The Chartered Accountant dated 06.05.14 the original, duplicate and triplicate invoices were with the appellant. It can't be said that this certificate is not based on facts. No infirmity in the certificate has also been observed in the impugned Order-in-Original. (iii) All these original, duplicate and triplicate invoices were with the lower adjudicating authority. The appellant's contention that the same were not sent to customers thus can't be doubted. (iv) All their buyers in their letter head and mostly under their stamp have signed and certified that they have not received any of the....

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....prove that the appellant has not recovered the said amount from their customers. I observe that the appellants deposited the impugned amounts on 31.03.14 and filed refund clam on 08.05.14 which were returned to them by the lower adjudicating officer being premature and that they shall file again after receipt of test report. The appellants again filed the claims on 04.09.14 and 17.09.14. From the above chronology, I observe that during the finalization of the balance sheet the refund claim cannot be said to be pending with the department. The indirect taxes recoverable could not have been shown from the department. In any case in the circumstances the findings based on balance sheet, if contrary to the hard evidence i.e. original, duplicate....