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TMI Blog2010 (3) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... showing that the excess amount of service tax paid by them, whose refund is being claimed, was not part of the cost of raw-material and, hence, not part of the price of finished goods sold, and has not been booked to the profit and loss account; - refund allowed - ST/750/2009-SM - 303/2010-SM (BR)(PB), - Dated:- 4-3-2010 - Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri V.K. Saxena, Jt. CDR, for the Appellant. Shri Alok Arora, Advocate, for the Respondent. [Order]. - The facts leading to this appeal filed by the Revenue are, inbrief, as under: 1.1 The Respondents are manufacturer of MS. Ingots chargeable to Central Excise Duty. For receipt of various inputs, they had availed GTA Service in respect of which servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the original adjudicating authority, the Respondent had produced the Chartered Accountant's certificate certifying that the incidence of service tax whose refund is sought had not been passed on to the customers but the adjudicating authority did not consider the same. The Commissioner (Appeals) also observed that from the Chartered Accountant's certificate and the book of accounts produced by the Respondent, ills clear that the incidence of service tax whose refund was claimed, has not been passed on by the Respondent to their customers. It is against this order of the Commissioner (Appeals) that the present appeal has been filed by the Revenue. 2. Heard both the sides. 2.1 Shri V.K. Saxena, Jt. CDR assailed impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x whose refund has been claimed by the Respondent, was not part of the price realised by the Respondent of the final product from the customers; that in the books of accounts of the Respondent, the service tax is not included in the cost of raw-material and it was not booked to the profit and loss account, that the same did not form the part of over-heads of the cost of the final product, that the Commissioner (Appeals), with a view to check the veracity of the submissions of the Respondent, asked the jurisdictional Assistant Commissioner in writing with regard to the Chatered Accountant's certificate submitted by the Respondent, but no comments in this regard were received from the Asstt. Commissioner and that in view of this, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooked to the profit and loss account; the, burden of proof that this plea is not be correct would be on the Department. The Department, therefore, should have produced evidence that the Chartered Accountant's certificate and the books of accounts produced by the respondent are not correct. But as reported by the Commissioner (Appeals) in the order, even though sufficient opportunity was given to the Department, in this regard, there was absolutely no response. I also find that the Tribunal in the cases of Birla Corpn. Ltd. v. CCE Pune (supra) and MR. Corpn. v. CCE, Mumbai (supra) has held that certificate produced by Chartered Accountant should not be rejected summarily without any evidence to the contrary while hi this case it is found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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