TMI Blog2015 (2) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... urer should be deemed to have absorbed the duty burden is to be rejected. - Decided against assessee. - E/467/2012 - Final Order No. 40054 / 2015 - Dated:- 13-1-2015 - Honble Shri R. Periasami,JJ. Shri S. Muthuvenkataraman, Adv., for the appellant Shri K.P. Muralidharan, AC (AR), for the respondent ORDER The appellant filed appeal against the impugned order dated 31.08.2012 passed by the Commissioner (Appeals). The brief facts of the case are that the appellants claimed refund of excess duty paid on account of change of duty rate for one day ie., on 07.12.2008, where the rate of duty on paper and paper products reduced from 8% to 4% vide Notification No. 58/2008 dated 07.12.2008. The adjudicating authority denied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Madras, which is still pending before the Honble High Court of Madras. 3. On the other hand, the Ld. AR reiterates the findings of the impugned order and submits that the issue has already been settled by this Tribunal against the appellants vide the Tribunals Final Order dated 22.02.11 and no stay has been granted by the Honble High Court. 4. I have carefully considered the submissions of both sides and perused the records. In the present appeal, the department issued show cause notice on erroneous sanction of refund which was confirmed by the Lower Authority and upheld by the Lower Appellate Authority. The whole issue is on the outcome of the parallel proceedings initiated by the Department on consequent to the Order-in-Appeal da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed after a few years also. Therefore, this reasoning that once credit note is issued the manufacturer should be deemed to have absorbed the duty burden is to be rejected. 6.6. A perusal of the show cause notice clearly indicates that the basis for proposal to deny the refund was the initial collection of higher amount of duty by the respondents. Certain observations that there is no evidence that the burden has not been passed on downstream has no relevance to the decision taken by the original authority. 7. In view of the above, order of the Commissioner (Appeals) sanctioning the case refund is set aside and the order of the original authority ordering the deposit of the refund to the Consumer Welfare Fund is restored. Considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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