TMI Blog2016 (11) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/16, Appeal No. E/86753/16-Mum - A/93600/16/EB, S/93601/16/EB - Dated:- 31-10-2016 - Mr. Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri V.K. Agarwal, Addl. Commr. (A.R.) for Appellant Shri Jitu Motwani, Advocate for Respondent ORDER Per Ramesh Nair By Order-in-Original the refund of respondent though sanctioned by the adjudicating authority but the same was credited to the Consumer Welfare Fund under Section 12C of the Central Excise Act, 1944, on the ground that the respondent could not prove that the incidence of duty has not been passed to the customer. Aggrieved by the Order-in-Original, the appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The respondent has as a precautionary measure submitted the additional documents i.e. declaration from the customers wherein the customer declared that they have neither availed the CENVAT credit in respect of refund amount nor any payment made towards the same. He submits that the learned Commissioner (Appeals) after satisfied with all the submission held that the incidence of duty had not been passed on. The department appeal is only on ground that the learned Commissioner (Appeals) has not got the said declaration verified, which has no basis for the reason that Commissioner (Appeals) is competent enough to ask additional documents and decide the appeal after submission the document made before him. If he satisfied he is not require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lower authorities. We do not agree for reason that the Commissioner (Appeals) has not decided the appeal only on the declaration of the customer submitted by the respondent, but he has also taken into consideration the Balance Sheet, Chartered Accountant certificate and other documents submitted by the respondent to the adjudicating authority. The relevant findings of the Commissioner (Appeals) is reproduced below:- 12. From the submissions made I find following has been proved without doubt. (i) All the invoices have been issued on 31.03.2014 and on the same day duty and interest etc. have been debited. (ii) At the time of first certificate of The Chartered Accountant dated 06.05.14 the original, duplicate and triplicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer issued on inspection of these very records. Department has also not adduced any material anamoly between the duty involved within the invoices and the CA certificate. 14. As regards to amount ₹ 2,71,51,671/- shown as Indirect Taxes recoverable under the Head 'Long Term Loans Advances' and ₹ 17,24,37,154/- as Indirect Taxes recoverable under the Head Short Term Loans Advances'. The adjudicating officer has concluded that the impugned amount is to be recovered from the customers. Thus it does not irrefutably prove that the appellant has not recovered the said amount from their customers. I observe that the appellants deposited the impugned amounts on 31.03.14 and filed refund clam on 08.05.14 which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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