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TMI Blog2011 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... test and got the cargo cleared. It was claimed by the appellant that there was no actual excess quantity and duty was not payable. Based on this, refund claim was filed and the original authority sanctioned the same. Subsequent, on an appeal filed by the department, Commissioner (Appeals) allowed the appeal of the department. The matter was carried to appeal in CESTAT which ordered de-novo proceedings. Commissioner (Appeal) in his order allowed the department s appeal and rejected the cross objections filed by the respondents. Against this order, the appellant (GNVFC) has approached this Tribunal. The Commissioner (Appeal) in his order observed as follows:- The judgment of High Court of Madras in Flow Tech Power case 2006 (202) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st when the appellant s appeal and stay application were pending before Revenue against the earlier order in appeal. Hence the amount paid with interest was in the nature of pre-deposit and the same need not be shown as recoverable from Government. Nor any certificate from the Chartered Accountant is required when the price of the final product is controlled by the government. He relied upon the following decisions :- (a) CCE, Delhi-II Gurgaon vs. BHP Engineers Limited 2008 (11) STR 217 (Tri. Del.) (b) Tamralipta Co-op Spinning Mill Limited vs. CCE, Calcutta 2003 (162) ELT 840 (Tri. Kolkatta) (c) Karnataka Antibiotics & Pharmaceuticals Limited vs. CCE, Bangalore 1996 (83) ELT 11 (Tri.) 4. I have gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are sold in which case the burden or the incidence of the duty on the raw material would stand passed on to the purchaser of the finished product. It would follow from the above that when the whole or part of the duty which is incurred on the import of the raw material is passed on to another person then an application for refund of such duty would not be allowed under Section 27(1) of the Act. 6. Further, it is worthwhile to consider the interpretation of the Hon'ble Court explaining further the Sub-section (1) of Section 27 and Section 28 (c) and (d) which I may like to quote :- 12. Sub-section (1) of Section 27 of the Act? provides for making of a claim for refund of duty, in certain cases duty and interest, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the main issue is better focused. It is a fact that appellant was allowed to lift the remaining cargo on payment of duty of Rs. 2,20,205/-, which they paid under protest and accordingly clearance was allowed. Subsequently, the appellant filed refund claim vide their application dated 16.10.1999 claiming refund of the excess amount paid. As per facts, the appellant has not produced any convincing evidence that the incidence of duty in question has not been passed on as the goods being under APM to show from their books of accounts that the amount paid as duty was not charged as expenditure and the same is retained as amount receivable from customs. At no point of time the appellant produced their financial documents or a certificate issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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