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TMI Blog2015 (3) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... t in dispute. The case law relied by the ld. AR are not relevant to the facts of the case as in Maharashtra Cylinder Ltd. (2003 (8) TMI 96 - CESTAT, MUMBAI) there was a price variation in the agreement. In the case of Gujarat State Fertilizers & Chem. Ltd. (2004 (1) TMI 143 - CESTAT, NEW DELHI), the duty was paid at the time of clearance of the goods. But in this case, the duty in dispute has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lve, Adv. JUDGEMENT Per: Ashok Jindal: The Revenue is in appeal against the impugned order wherein the ld. Commissioner (Appeals) sanctioned the refund claim to the respondent. 2. The brief facts of the case are that M/s. Voltas are manufactures of excisable goods and paying duty on their clearances. On 06.08.1997, a search was conducted in the premises of the respondent and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty as per the invoice and after clearance of the goods and on persuasion of the department, they paid duty under protest, which was held not payable by them. Therefore, in these circumstances, onus is on the revenue to prove that incidence of duty has been passed on the buyer, which revenue has failed to do so. Therefore, he has sanctioned the refund claim. Aggrieved from the same, revenue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said duty was paid on the persuasion of the department under protest. They have not recovered any amount over and above the amount shown in the invoices from the buyers and there is no evidence has been brought by the revenue on record that the respondent has recovered any amount over and above shown in the invoices from the buyers. He further submits that as they have paid duty under protest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. Ltd. (supra), the duty was paid at the time of clearance of the goods. But in this case, the duty in dispute has been paid after the clearance of the goods. Further, facts of the case are very much similar to the case of Easter Industries Ltd (supra), wherein the Tribunal held that the duty has been paid by making debit entry is made subsequent to the clearance of the goods to the effects tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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