TMI Blog2010 (10) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... - Hence, the Revenue has not put forth any evidence to contradict the concurrent factual finding of both the lower authorities - In the absence of any such evidence or submission, an adverse inference has to be drawn against the Revenue. - C/427/2009 - 1319/2010 - Dated:- 18-10-2010 - Shri M.V. Ravindran, J. Shri K.S. Chandrasekhar, JDR, for the Appellant. S/Shri N. Anand and Anirudha Naik, Advocates, for the Respondent. [Order]. This appeal is filed by the Revenue against the Order-in-Appeal No. 19/2009, dated 20-2-2009. 2. The relevant facts that arise for consideration are that the respondents herein, during the period 13-10-2006 to 23-1-2007, were paying cess on the agricultural products exported i.e. exports of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the current appeal before me. 1. The Commissioner (Appeals) has erred in upholding the OIO No. 14/2008 (Refunds) dated 16-6-08 passed by the Assistant Commissioner of Customs, Mangalore wherein it has been held that the burden of cess has not been passed on to the buyers where the sale proceeds realized is less than the FOB value declared in the Shipping Bills, in as much as he has merely endorsed the view taken by the original adjudicating authority without critically examining as to what were the reasons for realization of sales proceeds less than FOB value declared. Also, there is no evidence on record to prove that the amount short realized is attributable to the amount of Cess paid. In principle, FOB value includes all costs includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected by the Revenue is not in accordance with the law. 6. Further, I find from the grounds raised by the Revenue that Revenue is not disputing the fact that the amount received by the respondent from the up-country party is less than the FOB value of the shipping bills, the Department called for explanation and assessee through their representative explained to the Adjudicating Authority that the amount being an amount of cess, which was paid but was not payable and hence, did not collect this amount from the foreign purchasers. I also find that this explanation was accepted by the Adjudicating Authority and upheld by the ld. Commissioner (Appeals). From the grounds of appeal which has been reproduced above, it is seen that the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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