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TMI Blog2012 (3) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... V/s. Organan (India) Ltd (2008 - TMI - 31607 - SUPREME COURT). Therefore, on basis of verification of evidences, order of Tribunal granting refund is upheld – Decided in favor of assessee. - CENTRAL EXCISE APPEAL NO.70 OF 2004 - - - Dated:- 12-3-2012 - J.P. DEVADHAR AND A.R. JOSHI, JJ. Mr. A.S. Rao for the appellant. Mr. Prakash Shah i/b. PDS Legal for the respondent. ORAL JUDGMENT (PER J.P. DEVADHAR, J.) 1. This appeal was admitted on 24th August, 2005 on the following question of law :- Whether the refund can be granted when similar issue has been decided by the Hon ble Supreme Court in case of Commissioner of Central Excise, Mumbai 11 V/s. Allied Photographics India Ltd. 2004 (166) ELT 3 SCC and in para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da does not involve manufacturing process and hence no excise duty could be levied on clearances of compounded asafoetida. We are informed the S.L.P. filed by the revenue against the decision of the CESTAT dated 6/3/2002 has been dismissed. Thus, the order of the Tribunal holding that no excise duty was payable on clearance of compounded asafoetida had attained finality. 4. Thereupon, the assessee filed a refund application on 26/4/2002 seeking refund of the duty paid under protest while clearing the compounded asafoetida during the period from 25/3/1999 to 20/4/2000. 5. By an order in original dated 13/11/2002 the adjudicating authority rejected the refund claim on the ground that the assessee s invoices were not showing composite pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of Mr. Rao, learned counsel appearing for the revenue is that in the absence of any evidence on record both the lower appellate authorities committed an error in accepting the contention of the assessee that the element of excise duty has not been passed on to the customers. He submitted that as the assessee has paid the central excise duty at the time of clearance of the goods and in the balance sheet that excise duty amount has been shown under the head deposits, it has to be treated that the burden of excise duty has been passed on to the customers and accordingly, no refund could be allowed to the assessee. 8. We see no merit in the above contention. Admittedly, the commercial invoices issued while effecting the clearances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the burden to prove that the customs duty was not passed on to the customers is on the assessee. The Member (Technical) and the third Member on the basis of the following facts:- (i) in the invoices, it was clearly mentioned that the sale price did not include the customs duty. (ii) that there was no change in price post-levying of the duty. Assessee had filed its price list and the customs duty was imposed thereafter. The goods were sold to the customers at the same price which was stated in the price list. (iii) That there was an auditor's certificate certifying that assessee had not passed on the customs duty to the customers. We came to the conclusion that the assessee had not passed on the burden of the customs duty to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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