TaxTMI 
TaxTMI 
2017 (7) TMI 11
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....countant certificate is not conclusive evidence ignoring the fact that the appellant company produced not only the chartered accountant's certificate but also the profit and loss account and balance sheet to establish that there was no unjust enrichment if the refunded amount is paid to the appellant company ? 2) Whether the Honourable Tribunal is right in rejecting the evidence produced by the appellant peremptorily as against the requirement of law that where the presumption in law is rebutted by evidence, the burden is on the respondents to adduce evidence and reasons for rejecting the evidence produced by the appellant ?" 3. Briefly, the issue, which arises in this case is, whether the Assessee has rebutted the presumption raised....
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....point in time, was 4% and for others, the correct rate of duty was 8%. 4.3. It is, in this context, that the Assessee had requested the Assistant Commissioner of Customs, to reassess the duty, vide communication dated 12.08.2006. Since, there was a refusal to reassess duty, as indicated above, the Assessee approached this Court, whereupon, the order dated 19.11.2007, was passed directing reassessment of duty. 4.4. Consequently, as alluded to above, the order dated 21.01.2008, came to be passed sanctioning refund of an amount equivalent to Rs. 18,91,127/-. 4.5. Upon obtaining the order of reassessment in its favour, the Assessee filed refund application on 04.03.2008, which was adjudicated upon by the Assistant Commissioner of Custo....
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..... 5.1. In support of his submissions, learned counsel placed reliance on the judgment of the Division Bench of the Delhi High Court in Hero Motocorp Limited V. Commissioner of Customs (Import and General), 2014 (302) E.L.T. 501. 6. Mr.Sundareswaran, who appears on behalf of the Revenue, in rebuttal, largely, relied upon the orders of the authorities below. It is the submission of the learned counsel for the Revenue that the Chartered Accountant's certificate, Profit and Loss Account, Balance Sheet and Ledger Account, by themselves would not disturb the statutory presumption that the burden of tax had not been passed on by the Assessee to his customers. It was the submission of the learned counsel that the primary documents, which incl....
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....a, MANU/DE/4038/2013; Chandradhar Goswami and Others V. The Gauhati Bank Ltd., AIR 1967 SC 1058; and Central Bureau of Investigation V. V.C.Shukla and others, AIR 1998 SC 1406. 8.3. Before one could say that the Assessee had reached a stage that the statutory presumption obtaining against it in terms of Section 28-D stood rebutted, it would have to place on record, the necessary primary documents, based on which, entries were made in the ledger, and, the Balance Sheet was drawn up. If, the Assessee had placed on record, the primary documents/evidence, then perhaps, one could have said that the onus of proof had shifted on, to the Revenue, and if, the Revenue, thereafter, proceed to deny the refund, it would have to place on record the rele....