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TMI Blog2008 (1) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the ground that the appellant earned higher profit margin which has already been taken care by the Income Tax authorities – refund admissible - E/1770-1774/2006-SM and 1775/06-SM - 88-93/2008-SM(BR)(PB), - Dated:- 2-1-2008 - Shri P. K. Das, Member (J) Shri A. K. Prasad, Advocate for the appellant. Shri S. L. Meena, Authorised Representative (DR) for the respondent. [Order per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellant failed to establish that the incidence of duty had not passed on to any other person. Hence, the appellant filed these appeals before the Tribunal. 2. Ld. Advocate submits that the Commissioner (Appeals) while passing the order, had totally ignored the final order dt.24.8.05 of the Tribunal. He further submits that the Commissioner (Appeals) proceeded on the basis that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the order dt.24.8.05 of the Tribunal is reproduced below: "I find that Commissioner (Appeals) in the impugned order after going the account books gave a finding of fact that the respondents have taken the excise duty paid to the manufacturer under the category of "amount receivable" and that entire amount collected from their buyers over and above the purchase price (without tax) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the excise duty paid to Nepa Ltd. under the category of "amount receivable" (from the department as refund) and that they had taken the different between the purchase price from Nepa Ltd. (without tax) and their selling price to subsequent buyers as gross profit liable to Income Tax. Accordingly based on the material available on the record, I am of the view that the tax burden borne by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and above the purchase price(without tax) has been taken as gross profit for income tax purpose. So, the refund claim cannot be rejected simply on the ground that the appellant earned higher profit margin which has already been taken care by the Income Tax authorities. 6. In view of the above, the order of the Commissioner (Appeals) is set aside and the adjudication order is restored. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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