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2015 (9) TMI 1148 - HC - Central ExciseSSI exemption - production of pharmaceuticals as recorded in the RG1 register was not tallying with the production recorded in the laboratory reports - Duty demand u/s 11D - Held that:- Commissioner has assumed that in respect of all the clearances, the appellant has collected Excise Duty. If the department makes the allegation that the appellant had collected money representing Excise Duty, then the burden is on the Revenue to prove the same. In view of this position, the Order-in-Original has no merits. We set aside the same but remand the entire matter to the original authority to decide the case de novo after giving an opportunity to the appellant and after observing the principles of natural justice. The de novo order should be decided within four months from the date of this order. As could be seen from the order of the Tribunal, it is clear that the entire burden of proving that the respondent-assessee has collected money representing excise duty rests on the Revenue, but the order-in-original does not disclose that the Department has discharged the burden of proof, as such, the Tribunal was right in remanding the matter to the original authority to reconsider and decide the case on merits. Further, it is to be noticed that during the pendency of this appeal, the respondent-assessee is said to have paid certain amounts which fact is not denied by the Department. Further, in the Order-in-Original itself, the Commissioner had recorded that there is no direct evidence available on record except that certain sale invoices were raised against M/s. A.P.H.M.H.I.D.C. and certain amounts were shown as excise duty. That apart, so far as the invoices raised against M/s. A.P.H.M.H.I.D.C. are concerned, the respondent-assessee paid a sum of ₹ 3.00 lakhs and ₹ 4.50 lakhs vide their branch Challan Nos.04/2003-04 and 05/2003-04 dated 11.02.2004 through State Bank of India and this fact has not been controverted by the Department. - Decided against Revenue.
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