- (1.) This appeal has been preferred under Section 35(H) of the Central Excise Act, 1944 against the judgment and award dated 11-2-2010 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. 823/2005.
(2.) The appellant has prayed for refund of the amount which has been declined on the ground that appellant has failed to establish that they had not passed on duty burden upon the consumers. The adjudicating authority has observed that parameters necessary for proving out the refund of duty have not been established. The Commissioner (Appeals) has confirmed the order-in-appeal. The Tribunal has also observed that factual data in support of the submissions raised for refund has not been produced. The Tribunal has also observed that the record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break-up of the price charged for the goods prior to and after removal of gallery, it was difficult to accept the contentions sought to be raised on behalf of the appellants. In the absence of data, mere contention regarding the quantum of price cannot be a justification to reach to the conclusion that the appellant had not passed on the duty burden upon the consumers. The appeal has been dismissed on the basis of material available on the record.
(3.) Learned counsel Mr. Manoj Bhandari has submitted that in other similar cases, refund has been ordered by the Tribunal and excise levy has been held to be un-constitutional. The levy was not passed on to the buyers as such refund of amount was required to be made.;