Custom, Excise & Service Tax Tribunal
M/S. Emerson Network Power (I) P. Ltd vs Commissioner Of Central Excise, Mumbai ... on 9 May, 2014
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. E/389/08-Mum & E/CO/102/08-Mum
(Arising out Order-in-Appeal No. SRK/56/M-III/2008 dated 24.01.2008 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
M/s. Emerson Network Power (I) P. Ltd.
Appellant
Vs.
Commissioner of Central Excise, Mumbai III
Respondent
Appearance:
Shri V.C. Khole, JC (AR) for the appellant Shri Narendra Dave, CA for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 09-05-2014 Date of decision : 09-05-2014 O R D E R No:..
The appellant is in appeal against the impugned order for rejection of the refund claim. Revenue has also filed a cross objection to the appeal that the issue of unjust enrichment is not considered by the lower authorities.
2. The brief facts of the case are that the appellant procured purchase order for supply of goods at a price mentioned in the purchase order from their customers for the period in June 2005. Later on, the price was revised in October 2005 and the goods were delivered in the month of November 2005. The revised price were lesser than the original price, but inadvertently, the appellant issued invoice on the basis of the price of the purchase order obtained in the month of June 2005. After realising that the appellant has paid excess duty on the basis of the price of the purchase order obtained in June 2005, they issued credit note to their buyers for excess amount charged in the invoice as per the revised price and sought refund of the excess amount paid by them. The refund claim was denied on the premise that by issuing credit note subsequently does not amount that the appellant has recovered the duty from the buyers. Aggrieved from the same, the appellant is before me.
3. It is the contention of the appellant that they were required to deliver the goods on the basis of revised price but inadvertently they issued invoice on the basis of price of the original purchase order obtained in June 2005 which is very much clear from the records placed before the lower authorities. Moreover, the excess duty paid by them has not been recovered from the buyer. Therefore, they are entitled for refund claim. They produced the balance sheet and Chartered Accountant certificate that the excess duty paid has not been received from the buyers.
4. Considered the submissions made by the counsel for the appellant, as the balance sheet and the Chartered Accountant certificate were not produced before the lower authorities by the appellant, which was required to be examined to ascertain the fact whether the appellant has received or not the excess duty from the buyer. Therefore, matter needs examination at the end of the Adjudicating Authority to ascertain the fact from the Chartered Accountant certificate and balance sheet for the impugned period, that the excess duty paid initially has not been received from the buyer and the same has shown receivable from the revenue in the balance sheet. If the appellant is able to pass both the test, they are entitled for refund claim.
5. With these observations, the impugned order is set aside. The Appeal is allowed by way of remand. The Adjudicating Authority shall pass appropriate order within 90 days of the receipt of this order. The Cross objection are also disposed of in the above terms.
(Dictated in Court) (Ashok Jindal) Member (Judicial) //SR 3