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2011 (1) TMI 990 - AT - Central ExciseClassification - AD/DC drives - show-cause notice was issued to classify the product under Chapter Heading 85.37 and 85.43 attracting duty @ 20% and 25% respectively as against Chapter Heading 85.04 attracting Central Excise duty @ 5% as per assessee - maintainability of appeal filed by the Revenue before the Commissioner (Appeals) - Held that:- As in this case, the Asst. Commissioner was not the adjudicating authority, who has filed the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has not dealt the same in accordance to law. Hence, the appeal filed by the Revenue before the Commissioner (Appeals) is not maintainable, following the decision of Maza Cosmetics (2006 (8) TMI 65 - HIGH COURT , DELHI) and Silver Streak Welding Products India Pvt Ltd., (2007 (9) TMI 222 - HIGH COURT BOMBAY). Regarding denial of refund claim - the refund claim has been denied on the presumption that the buyer might have taken credit - Held that:- In this case the credit is not available to the buyers on capital goods and if any of the buyer has taken credit of this capital goods, then the liability to recover the amount wrongly availed credit is of the buyers and not of the supplier - in this case, the verification has not been done by the adjudicating authority properly and they have done only on random basis - Decided in favor of the assessee by way of remand
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