2013 (4) TMI 181

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..... urden would shift to the department to prove that the respondent’s claim is not correct. In this case, no such evidence has been produced by the department. In view of this, we do not find any infirmity in the impugned orders-in-appeal. The Revenue’s appeals are dismissed. The Cross Objections also stand disposed of as above.
Ajit Bharihoke and Shri Rakesh Kumar,JJ. Shri M.S. Negi, DR, for the Appellant. Shri Sunil Kumar and Ms. Priyadeep, Advocates, for the Respondent. ORDER The respondent are manufacturers of Optical Fibre Cable and PDF cable (Telecommunication Grade) falling under Chapter sub-heading No. 85444990-99 and 90011000 of the First Schedule to the Central Excise Tariff Act, 1985, which during the period of dispute had be .....

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..... 2. Heard both the sides. 3. Shri M.S. Negi, the learned DR, assailed the impugned orders-in-appeal reiterating the grounds of appeal in the Revenue's appeal and emphasised that since the respondent had mentioned the higher amount of duty in the invoices it has to be presumed that the burden of that duty, whose refund is being claimed by them, had been passed to the customer - M/s. BSNL, that though in this regard, the respondent have produced a Chartered Accountant's certificate, production of Chartered Accountant certificate cannot be treated as the evidence in support of their claim that incidence of duty whose refund is claimed has been borne by the respondent and that in view of this, the impugned order is not correct. 4. Shri Sunil .....

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..... e customers. They, therefore, pleaded that there is no infirmity in the impugned orders-in-appeal. 5. We have considered the rival submissions. 6. In these cases, during the period of dispute, the assessment of duty was on provisional basis and during that period the respondent had paid duty on provisional basis at a higher price. Though, the invoices had been issued by the respondent to BSNL on that basis, it is not disputed that the payment from the BSNL was received only after the finalisation of the provisional assessment and the payment received from the BSNL does not include the excess duty paid by the respondent. Not only this, in this regard, the respondent have also produced a Chartered Accountant's certificate certifying that th .....

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