ORDER
P.S. Bajaj, Member (J)
1. This appeal has been filed by the appellants against the impugned order-in-appeal dated 31-7-2002 vide which the Commissioner (Appeals) has affirmed the order-in-original of the Deputy Commissioner who allowed the refund of Rs. 60,886/- to the appellants, but directed that the same should be credited to the Consumer Welfare Fund.
2. None has come present on behalf of the appellants. The Counsel has senta request for adjournment. But the record shows that on the last date of hearing also the Counsel sought the adjournment and the case was adjourned for today on his request. But today again the Counsel has not come present and sought adjournment on the ground that he has to appear before the High Court. But in what connection he has to appear in the High Court has not disclosed by him. It appears that the Counsel is only interested in prolonging the matter. I, therefore, decline the request of the Counsel.
3. The perusal of the impugned order shows that the appellants filed a refund claim for Rs. 60,886/- on account of excess deposit of SAD vide Bill of Entry No. 1299, dated 24-6-98, before the Assistant Commissioner. The ground for the excess deposit disclosed by them was that in terms of Notification 56-Cus., dated 1-8-98 if duty was paid under DEPB, SAD was not leviable. Therefore, they were entitled to the refund of the excess amount. Their claim was allowed by the Deputy Commissioner, but the amount was directed to be deposited to the Consumer Welfare Fund. That order has been affirmed by the Commissioner (Appeals).
4. I have heard the SDR and gone through the record. The refund of the disputed amount in cash, or cheque or DD has been declined to the appellants on the ground that they had failed to prove that the burden of duty had not been passed by them to any other person. They did not bring on record any evidence to rebut this statutory presumption against them in terms of Section 28D of the Customs Act that they had passed on the burden of duty to their customers.
5. In the grounds of appeal (Para 3.3), the appellants had only alleged that in the end of financial year, they transferred the payment of SAD to Purchase Account and the cost of purchase was increased and that the effect of increase in cost was reduction in their profit. They had referred to Chartered Accountant’s Certificate and copies of ledger in that regard. But even if it is so assumed, still they were required to prove that the cost of their final product was not effected in any manner. In other words, the cost of their final product remained the same and no alteration/variation was brought about in it. It was for them to prove by adducing tangle evidence that the burden of duty had not been passed on by them to the ultimate consumers. But they have failed to do so. That being so, the authorities below have rightly directed credit of the refund amount to the Consumer Welfare Fund. The impugned order of the Commissioner (Appeals) does not suffer from any legal infirmity and the same is upheld. Consequently, the appeal of the appellants stands dismissed, being without merit.