TMI Blog2011 (1) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... is burden on it. The appellant could not produce anything new or contrary to the above. Therefore no infirmity with the concurrent finding of the lower authorities. - E/974/2009 - Final Order No. A/118/2011-WZB/C-IV(SMB) - Dated:- 11-1-2011 - Shri S.K. Gaule, J. Appearance: Shri S.M. Vaidya, Authorised Representative (SDR) for the appellant Shri Ravinder Jain, Advocate for the respondent Revenue is in appeal against the Order-in-Appeal No: 203/ 2009/MCH/AC/Gr.VII (EP) /09-10 dated 05/08/2009 whereby the Commissioner (Appeals) has dismissed the appeal filed by the Revenue against the order-in-original No. 24/PK/AC/GR.VII(EP)/ 2007-08 dated 26/11/2008 allowing the refund of Rs. 1,25,599/- to the importer. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962 pertained to duty paid at the clearance stage and that in respect of duty paid subsequent to clearance of the goods there cannot be such a presumption and accordingly dismissed the appeal of the Revenue. 4. From the appeal, I find that the contention of the department is that even if the duty is paid subsequent to the clearance of the goods still the claimant of the refund has to prove that the incidence or duty has not been passed on to any other person at the time of claim or sanction of the refund amount. The department also relied on the Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. 2005 (181) ELT 328 (SC). 5. The contention of the respondent is that there is no dispute that on merits they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden of the department to establishment that incidence of duty had been passed on to the buyer. From the records I find that the department has not discharged this burden. So far as the decision of the apex court in the case of Sahakari Khand Udyog Mandal Ltd. (supra) the learned Commissioner (Appeals) has given categorical finding that the department had not found or arrived at any conclusion regarding passing on of the incidence of duty in order to discharge this burden on it. The appellant could not produce anything new or contrary to the above. Therefore, I do not find any infirmity with the concurrent finding of the lower authorities. 7. The impugned order is upheld and the appeal is dismissed. (Dictated in Court) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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