TMI Blog2007 (10) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... roved – Refund admissible. - AppealNo. E/2766/2006-Mum. - A/1402/2007 WZB/C-IV(SMB) - Dated:- 9-10-2007 - Shri K.K. Agarwal, Member (T) [Order per] - This is Revenue's appeal The brief facts of the case are that the respondents M/s Cummins India Ltd. had cleared inputs at higher prices and debited the duty only equivalent to the credit availed by them. Therefore a show cause notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned SDR submits that the Commissioner (Appeals) has allowed refund holding that the department has no where produced any evidence that the amount has been recovered from the customers and has observed that the department cannot presume that the incidence of duty has been passed on to the customers. The Commissioner (Appeals) ignored that the said amount has been shown by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat merely because an amount has been shown in the Profit and Loss Account as expenditure does not establish that amount has been recovered from the customers. In the present case the amount was paid during the pendency adjudication which was never recovered from the customers. The goods initially were cleared by debiting amount of credit taken on the inputs as such and the same amount has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken as passing on the burden of erroneously fixed additional amount of excise duty retrospectively from the date of the transactions, which were on the basis of invoice value on which the excise duty was already recovered without reference to any notional interest on advances. The same should have been established to have been recovered from the customers. Attention was also invited to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarged by producing certificate from the. Chartered Accountant that the incidence of duty. Was has not been passed on to the customers. This certificate has not been disputed the by Revenue in its appeal. Merely because the amount has been shown as expenditure in the Profit and Loss Account does not establish that it has been recovered as duty from the customers especially in a case where input ..... X X X X Extracts X X X X X X X X Extracts X X X X
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