COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Vs. S.G. PHYTO PHARMA PVT. LTD.
LAWS(BOM)-2017-7-381
HIGH COURT OF BOMBAY
Decided on July 01,2017

COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Appellant
VERSUS
S.G. Phyto Pharma Pvt. Ltd. Respondents

JUDGEMENT

S.V. Gangapurwala, J. - (1.) The order granting refund upheld by the Tribunal is assailed in the present appeal.
(2.) Mr. Jetly, learned counsel for the appellant states that following substantial questions of law arises: "Whether the order of Tribunal can be sustained inasmuch as it has not met with the contentions of the appellant, no material facts are discussed and has not considered the aspect of presumption as envisaged under Section 12B of the Central Excise Act?"
(3.) Mr. Jetly, the learned counsel submits that under Section 12B, the presumption arises that the assessee has passed on the duty to the customer. Though the presumption is rebuttable presumption, the initial burden is cast upon the assessee to show that the said burden has been passed on. According to the learned counsel, the assessee in the present case has failed to do so. Only because the sale price has changed prior to and after the refund order would ipso facto be sufficient to come to the conclusion that the duty burden has been passed and that the assessee would be unjustly enriched. No independent evidence is available.;


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