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TMI Blog2011 (5) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ronouncement about the non-dutiability of the product, the price remained the same for clearance of the goods, that by itself cannot disclose whether the assessee had actually transferred the duty element upon the customer or not, no such evidence was produced by the appellants in the case in hand, appeal fails and is dismissed - E/230/2004 - A/481/2011-WBZ/C-II(EB) - Dated:- 19-5-2011 - Justice R.M.S. Khandeparkar, Shri Sahab Singh, JJ. REPRESENTED BY : Shri N.M. Bhave, General Manager, for the Appellant. Shri Manish Mohan, SDR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard Shri N.M. Bhave, General Manager for the appellants and Shri Manish Mohan, SDR for the Respondent. 2. The pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise, Kolkata v. NICCO Corporation Ltd. reported in 2003 (156) E.L.T. 144 (Tri.-Kolkata) and Sinkhai Synthetics Chemicals Pvt. Ltd. v. C.C.E., Aurangabad reported in 2002 (143) E.L.T. 17 (S.C.), it was sought to be submitted on behalf of the appellants that the authorities below erred in dismissing the claim for refund solely on the ground of non-discharge of the obligation of the appellants in relation to non-transfer of the duty elements of the customers. It is the contention on behalf of the appellants that the very fact that there was no difference in the price charged for such scrap during the period the duty was paid and during the period subsequent to the order of the Commissioner (Appeals) dated 17-2-1992 holding that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and establish the various components which formed part of the total price for clearance of the foods. Since no such evidence was produced by the appellants in the case in hand, it is difficult to justify interference in the impugned order. 6. As regards the decision of the Tribunal in Nicco Corporation Ltd s case, it is true that the Tribunal has held that the assessee therein were entitled for refund subsequent to the authoritative pronouncement that there was no duty liability in respect of the product which was the subject matter of consideration in the said case. However, the said finding was initially based on the facts and circumstance of that case. It was clearly held therein : However, in the facts and circumstance of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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