2016 (11) TMI 993

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.... the appellant challenged the said demands and denial of the benefit of notification, they filed a revised classification list with effect from 05/11/99 under protest and started paying duty at tariff rate without availing the benefit of concessional rate of duty. They succeeded in their challenge to the denial of notification before the Commissioner (Appeals) who allowed their appeal.  Since the appellant had paid duty under protest for the period 11/99 to 12/2000  during the pendency period of the appeal, they have filed  refund claim of the same. The refund claim was rejected by the original adjudicating authority on the grounds that the appellants have failed to establish that they have not  passed on the incidence o....

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....and in the case of  CCE Vs Crane Betel Nut Powder Works - 2007 (219) ELT 692 (Tri Bang).  He also asserted that the decision of the Hon'ble Supreme Court in the case of CCE, Mumbai Vs. Allied Photographics India Ltd., - 2004 (166) ELT 3 (SC)  is not applicable to their case as in that case there was a categorical findings that it was improbable for the dealers to absorb 20% element of duty as the dealers margin are that not usually high. 3.  The learned AR argues that the Hon'ble Supreme Court in the case of  Allied Photographics India Ltd. case has specifically observed that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed o....

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.... Feb 01 81.06 76.59 76.59 76.18 From the above, it can be seen that  the cum duty price of the product is not related strictly to the availment of exemption. In fact the assertion of the appellant that price has been uniform  is misplaced and is not correct. Section 11B of the Central Excise Act, 1944 put the onus of proving all the burden of duty has not been passed on to the customers and passed on claiming the refund.  In the instant case, the sole contention of the appellant is based on the fact that the price before and after  the impugned period has remained the same.  The Hon'ble Supreme Court in the case of Allied Photographics India Ltd., held as follows: 18.   Before concluding,....