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2011 (5) TMI 787 - AT - Central ExciseRefund claim - contention of the appellants that the controversy in that regard was finally resolved by the order of the Commissioner (Appeals) dated 17-2-1992 in favour of the appellants. It is the further case of the appellants that since at the insistance of the department the appellants had paid under protest the duty in relation to the said scrap, the appellants are entitled for refund – Held that:- Mere contention that during the period during which the duty element was discharged by the assessee under protest as well as during the subsequent period during which there was authoritative pronouncement about the non-dutiability of the product, the price remained the same for clearance of the goods, that by itself cannot disclose whether the assessee had actually transferred the duty element upon the customer or not, no such evidence was produced by the appellants in the case in hand, appeal fails and is dismissed
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