9911796707
TMI Blog2008 (8) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... costing & pricing details produced by the appellants clearly show that the appellants could not have passed the incidence of excess duty paid to the consumer or Govt, of India as the administered price even after adding direct subsidity could not cover the costs calculated taking into account concessional rate of duty. The loss borne by the appellant would be still higher if costs are calculated at tariff rate which was actually paid and which is the reason for claiming refund. The adjudicator is totally silent on this evidence clearly establishing that the differential 3% of duty paid by the appellant could not have been passed on. I accordingly come to a conclusion that the adjudicator has not only failed in following remand direction bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n included in the cost of the finished product. Further, the Department has relied on the Single Member's decision in the case of Hanil Era Textiles Ltd. v. C.C. Ex, Raigad - 2008 (225) E.L.T. 117 (Tri-Mum.) that the Chartered Accountant's Certificate is not sufficient to discharge the burden cast on the assessee to prove that the incidence of duty has not been passed on to the customers. 4. After hearing the case for some time and after noticing that the case has been going back and forth between the Appellate Authority and the Original Authority, we reject the Stay Petition filed by the Department and proceed to decide the Appeal itself. 5. We observe that the wordings used by the lower Appellate Authority to allow the Appeal of the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under the circumstances, we have, with the assistance of the learned Counsel and the learned D.R., examined the records of the case. We find that the balance sheet produced by the Respondents clearly records that the amount of claimed refund is receivable from the Department. From the cost sheet submitted by the Respondents to the Ministry of Chemicals and Fertilizers, we find that they have included only the undisputed duty amount of Rs. 99,10,938.00 (Rupees ninety-nine lakhs ten thousand nine hundred and thirty-eight) while calculating the cost as against the total duty of Rs.1,25,60,947.00 (Rupees one crore twenty-five lakhs sixty thousand nine hundred and forty-seven) paid to the Customs including the disputed excess duty and the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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