TMI Blog2018 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... ring on the controversy involved, such an opportunity has to be provided to the assessee, otherwise the order may suffer from the breach of principles of natural justice The matter is required to be remanded to the Joint Commissioner, Central Excise to decide the controversy afresh by permitting the assessee to produce on record the other documents having bearing on the issue involved in the present case by setting aside the orders passed by the authorities below - appeal allowed by way of remand. - Central Excise Appeal No. 1 of 2007 - - - Dated:- 17-4-2018 - R. K. DESHPANDE, AND M.G. GIRATKAR, JJ. Shri Anand Jaiswal, Senior Advocate assisted by Shri W.T. Mathew, Advocate for appellant. Shri Shantanu Khedkar, Advocate with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable under Entry No. 2404.50 or 2404.60 after 1st April, 1989. The issue is concluded in the earlier round of proceedings which has attained the finality upto the Apex Court holding that from 1st April, 1989, the snuff of tobacco manufactured by the appellant was classifiable under the Entry No. 2404.60 and only 10% of the duty was payable on it. The appellant paid duty at the rate of 25% as was charged by the Department from 1st April, 1989 under protest. Consequent upon the decision which has attained the finality upto the Apex Court, the appellant claimed refund of the excess amount of duty paid from 1st April, 1989 till February, 1994, after which the appellant was undisputedly classified under Entry No.2404.60. 5] In the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 that, uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. The Court rejected the claim for refund holding that the findings of the authorities below are based upon the relevant factors which does not call for interference under Article 136 of the Constitution of India. He has also relied upon the decision of the Apex Court in case of South India Alloy Industries vrs. Collector of Central Excise, reported in (1997) 8 SCC 729 to urge that the onus is upon the assessee to establish the claim for refund by producing the evidence on record. 7] The aforesaid contention of Shri Khedkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, the burden to establish such claim shall be upon the appellant, who has to lead evidence to the satisfaction of the authorities concern for refund of the amount. 9] Shri Jaiswal, the learned Senior Counsel appearing for the appellant has urged that the authorities concerned if was not satisfied with the evidence produced before it, was at liberty to call from the appellant the relevant documents having bearing on the issue required to be decided. In our view, the proceedings before the Joint Commissioner of Central Excise are not actually in the nature of lis and the authority has to be satisfied on the basis of objective assessment of the material placed on record. It is the duty of the authority to call for the cost ..... X X X X Extracts X X X X X X X X Extracts X X X X
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