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2015 (1) TMI 573 - HC - CustomsRefund of 4% of Special Additional Duty (ADC/SAD) - assessee filed refund in terms of Notification No.102/2007 – department rejected the claim on the ground that assessee failed to prove that they had not passed on the incidence of duty to the customers or any other person and also they have not furnished the required documents in relation to refund claims - held that:- In the Tribunal’s order, it is observed that ‘there is no dispute that all the conditions in terms of the Notification have been fulfilled excepting the unjust enrichment aspect which has been as submitted by the learned Counsel, prescribed by the Board’. Therefore, it is not open to the learned Counsel for the Revenue to contend that before this Court though the terms of the notification has not been complied with but the same has been considered and the point that was argued before the tribunal is only to prove unjust enrichment aspect. Section 28D of the Act states that there arise a presumption that the incidence of duty has been passed on to the customers. It also states that every person who has paid the duty on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. Therefore, it is clear that it is rebuttable presumption. To rebut such presumption, the assessee has produced auditor report required to claim the refund of special additional duty. The auditor has unequivocally stated in his report that the burden has not been passed on directly or indirectly and in coming to such conclusion, they have taken into account how the price of the traded goods has been arrived for this purpose. Therefore, such presumption stands rebutted. No substantial question of law would arise - Decided against Revenue.
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