Customs, Excise and Gold Tribunal - Bangalore
Amrutanjan Limited vs The Commissioner Of Customs And Central ... on 27 July, 2007
ORDER S.L. Peeran, Member (J)
1. The appellant has filed a misc. application along with documents and a Certificate by the Chartered Accountant to demonstrate that the refund eligible to them is not hit by the provisions of unjust enrichment. The Revenue was directed to file their objections. The Additional Commissioner has sent his objections on the ground that the evidence, which has now been produced before the Tribunal, was not furnished to them including the copies of invoices/bills etc. As the assessee is now producing the evidence to substantiate their claim with regard to the refund of the matter, therefore, the misc. application is allowed and they are permitted to rely on the evidence.
2. This appeal arises from OIA No. 101/2001-CE dated 13.06.2001 by which the refund claim pertaining to the duty paid for the period from February 1985 to 26.04.1995 amounting to Rs. 7,51,71,516/- has been rejected on the ground that the assessee did not produce evidence with regard to the claim that the incidence of duty has not been passed on to the buyers. The contention of the appellant is that the duty was paid under protest and the assessments were provisional. The aspect pertaining to the classification of the items in question was agitated before the Tribunal and ultimately, it was decided in their favour by the judgment rendered by the Apex Court in Civil Appeal Nos. 3681-3682 of 1991 dated 30.03.1995.
3. The learned Counsel submits that since the assessments were all provisional, therefore, during the relevant period, there were number of judgments of the Apex Court laying down the proposition that the assessee is not required to show that the incidence of duty has not been passed on to the buyers in respect of the provisional assessments. The learned Counsel relies on the following rulings:
1. Dr. Reddy's Laboratories Ltd. v. CC and CE, Hyderabad 2007-TIOL-511-CESTAT-Bang.
2. CCE and C, Hyderabad-I v. Novopan Industries Ltd. 2006 (07) LCX 0269 (CESTAT-Bang.)
3. Sri Rama Machinery Corporation Ltd. v. Gokak Mills, Belgaum 2005 (11) LCX 0070 (Tri.-Bang.)
4. CCE, Visakhapatnam-II v. Glaxo Smithkline Consumer Healthcare Ltd. 2006 (02) LCX 0100 (Tri.-Bang.)
5. Ampro Industries Pvt. Ltd. v. CCE, Hyderabad 2005-TIOL-731 (CESTAT-Bang.)
6. CCE, Mumbai-II v. Allied Photographics India Ltd.
7. Mafatlal Industries Ltd. v. UOI 1996 (017) RLT 907 (SC) He submits that the Commissioner was not justified in taking the view that they are required to furnish documentary evidence to the proof that the excise duty paid was not passed on to any other person when the assessments were all provisional in the matter. In any case, the evidence now produced also establishes the fact that the duty was paid by the company and the same has not been recovered from the customers. He submits that as the issue is covered in their favour, the appeal be allowed with consequential relief.
4. The learned JDR opposes the prayer and submits that the evidence now produced is required to be examined by the original authority including the citations relied by them. He prays for remand of the matter.
5. We have carefully considered the submissions. The fact pertaining to the duty having been paid under protest or that the assessments were provisional has not been brought out in the Commissioner (Appeals)'s order. This aspect requires to be examined. The appellants should be provided with an opportunity to show that the assessments were all provisional and that during the said period, when the assessments were provisional, the presumption that duty has not been passed on to the customer in terms of the judgment cited should be considered by the authorities. The appellants should also be given an opportunity to produce the evidence now produced before the Tribunal to establish that the incidence of duty has not been passed on to the customers. Therefore, the impugned orders were set aside and the matter remanded to the original authority with a direction to dispose of the matter within four months, as the issue is a very old one. In case, the assessee is entitled for refund, the same should be considered and paid expeditiously along with interest as per law. The appeal is allowed by way of remand.
(Pronounced and dictated in open Court)