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TMI Blog2016 (12) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Padmanabhan The appeal filed by Revenue is directed against the order-in-appeal dated 05.07.2012 passed by the Commissioner (Appeals). The assessee is engaged in the manufacture of Optical Fibre Cables for telecommunication purposes. The department ordered provisional assessment which was finalised by the final assessment order dated 01.02.2008. As a result of finalisation, it was determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the duty burden stands passed on to the buyer. 2. Heard Shri Yogesh Agarwal, ld. AR for the Revenue and nobody appeared for the respondent. Ld. AR reiterated the grounds of appeal filed by the Revenue. 3. At the time of finalisation of provisional assessment, the duty paid in excess is to be adjusted against the excise duty short paid by the assessee. After this adjustment, the final duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final prices were decided as per the final assessment order and in case of reduction of price or negative price variation no excess amount of the time of provisional assessment was paid to the appellant and thus in fact the appellant have received the payment for the goods at the reduced rate. It has not been disputed by the department that in case of negative price variation the Central Excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve passed on the incidence of duty whose refund is claimed by them. In would also like to mentioned that the authority while passing the order has not correctly followed the word duty passed on here the word is duty and not Cenvat Credit and further words duty passed on materialises only when the duty involved has been collected from buyer and as in the case the duty collected is as per final bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be denied on assumption/ presumption or on ifs and buts, until otherwise proved. In view of above discussions in previous paras well supported by the decisions of higher appellate authorities, the appellant is entitled for refund of the duty involved in the refund claim. Accordingly, the appellant is allowed by setting aside the impugned order-in-original". 5. In view of above, we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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