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TMI Blog2011 (6) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... rary produced by the appellants. during the relevant period, the refund arising out of finalisation of provisional assessment is also subject to provisions of unjust enrichment and that the burden to prove that they have not passed on the duty incidence is on the claimant. appeals rejected - E/142-144/2006-EX(BR) - 518-520/2011-EX(PB) - Dated:- 29-6-2011 - Justice R.M.S. Khandeparkar, Shri M. Veeraiyan, JJ. REPRESENTED BY : S/Shri Ravi Raghavan and Hemant Bajaj, Advocates, for the Appellant. Shri B.K. Singh Jt. CDR, for the Respondent. [Order per : M. Veeraiyan, Member (T) (for the Bench) (oral)]. These three appeals have been filed by the same appellant against the common order-in-appeal No. 567-569(HKS) CE/JPR-II/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the burden to the consumers and further that the processor was eligible for deemed modvat from 1-3-2001. Orders of the original authority stand upheld by the Commissioner (Appeals). 4. Learned Advocate for the appellants submits that the yarn was cleared from the spinning division to the weaving division for the purpose of manufacture of grey fabrics and the grey fabrics were subsequently sent to the processors. The processors were working under the Compounded Levy Scheme initially for some period and later they were paying duty on ad valorem basis from March, 2001 and were availing deemed credit. As the assessment of yarn was provisional, the officer finalising provisional assessments should have adjusted the excess paid duty towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he independent processors, the claim that they have not included the value of excise duty paid for determining the value of fabrics also does not stand to reason. In the case of captive consumption and transfer of material for job work, the practice adopted by the appellant in not including the duty amount in the cost sheet cannot be the deciding factor to determine whether the appellant has passed on the burden to the customers. Apparently, the first sale by the appellants was that of processed fabrics as yarn and grey fabrics were not sold by them. Duty paid on the yarn naturally has to be included in determining the cost of the yarn irrespective of the fact whether the grey fabrics was subject to excise duty or not. It is also not disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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