TMI Blog2017 (7) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... can only, at best, be a secondary evidence. The primary evidence would be the underlying documents, such as Bills, Sales Invoices, etc. In so far as the entries in the books of accounts and ledgers are concerned, they do not get proved by themselves even those entries require proof - in the opening paragraph of the Chartered Accountant's certificate, seems to indicate that the books of accounts and the relevant supporting documents have been verified. If, that was the position, then, we see no reason why the Assessee could not produce the relevant invoices, i.e., supporting documents before the Tribunal, despite opportunity having been given, in that behalf - appeal dismissed - decided in favor of Revenue. - C.M.A. No. 2698 of 2015 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 3.2. A bare perusal of the section would show that there is a presumption qua the person, who has paid duty on any goods under the Act, that he has passed on the full incidence of such duty to the buyer of such goods, unless the contrary is proved by him. 4. In the instant case, there is no dispute that the Assessee was entitled to refund of duty amounting to ₹ 18,91,127/-. This order came to be passed in favour of the Assessee by the Assistant Commissioner on 21.01.2008. 4.1. The said amount came to be quantified, after this Court, via an order dated 19.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be credited to the Consumer Welfare Fund of India and, in so far as the balance amount was concerned, i.e., ₹ 2,93,859/-, he concluded that the refund application was not properly filed and, according to him, refund was prematurely claimed. 4.6. Being aggrieved, the Assessee preferred an appeal to the Commissioner of Customs (Appeals). The said appeal was rejected vide order dated 03.12.2009. 4.7. The Assessee carried the matter further by way of appeal to the Tribunal. The Tribunal, as indicated above, vide order dated 24.04.2015, rejected the appeal of the Assessee. 4.8. It is, in this background, the instant appeal has been filed, in this Court. 5. Mr.Hari Radhakrishnan, who appears on behalf of the Assessee, says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the learned counsel for the Assessee concedes that the sales invoices, pertaining both to the period prior to the import and that which followed thereafter, were not placed on record. 8. Given the aforesaid facts, what is required to be ascertained by us, is, whether the statutory presumption obtaining against the Assessee that it had passed on the burden of duty stood rebutted. 8.1. According to us, the Chartered Accountant's certificate, the Balance Sheet and the ledger account, by themselves, did not disturb the statutory presumption, as these are not primary documents, which would capture the transactions that the Assessee may have entered into with its customers. The primary evidence would be the sales invoice that would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates that a sum of ₹ 18,91,216.47 is receivable by the appellant from the Customs authorities. It further states that based on the explanation given to them, they believe that the said sum had not been collected by the Assessee, from its customers. We must indicate that in the opening paragraph of the Chartered Accountant's certificate, seems to indicate that the books of accounts and the relevant supporting documents have been verified. If, that was the position, then, we see no reason why the Assessee could not produce the relevant invoices, i.e., supporting documents before the Tribunal, despite opportunity having been given, in that behalf. 9. In so far as the judgement of the Division Bench of the Delhi High Court in Her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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