2008 (1) TMI 304

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....na, Authorised Representative (DR) for the respondent. [Order per P. K. Das, Member (J)] - The relevant facts of the case are that the appellants procured coal ash from M/s. Nepa Ltd., which they sold to their customers. M/s. Nepa Ltd. paid duty under protest. The appellant filed refund claim before the adjudicating authority based on the Hon'ble Gujarat High Court judgment dt.4.4.2000. The adj....

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....He further submits that the Commissioner (Appeals) proceeded on the basis that the appellant earned higher profit margin in this case. He also submits that the Tribunal discussed in the Final Order dt.24.8.05 on this issue and rejected the appeal filed by the revenue. 3. Ld. DR reiterates the findings of the Commissioner (Appeals). He submits that in all these cases, the sale price of coal ash ....

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....collected from their buyers over and above the purchase price (without tax) has been taken as gross profit for the income tax purposes. The Commissioner (Appeals) held as under: "From the details given above it is clear that the appellant have consciously not passed on the excise duty element to their buyers and hence it cannot be concluded that they have passed on duty element in the guise of ....

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....based on the material available on the record, I am of the view that the tax burden borne by the appellants in respect of their purchases of Coal Ash(cinder) from M/s. Nepa Ltd. during the period Nov-02 to Feb-03 has not been passed on their buyers and that they are eligible for the refund claimed". In view of the finding of the Commissioner (Appeals) which is based on the account books maintai....