Custom, Excise & Service Tax Tribunal
Cce, Gurgaon vs M/S Maruti Udyog Ltd on 30 July, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 30/07/2014. DATE OF DECISION : 30/07/2014. Excise Appeal Nos. 2220 and 2240 of 2005 [Arising out of the Order-in-Appeal No. 155/AKG/GGN/2005 dated 30/03/2005 passed by The Commissioner of Central Excise (Appeals), Delhi III, Gurgaon.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? CCE, Gurgaon Appellant Versus M/s Maruti Udyog Ltd. Respondent
and vice-versa Appearance Shri Yashpal Sharma, Authorized Representative (DR) for the appellant/respondent.
Shri B.L. Narasimhan, Advocate for the Respondent/appellant.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 53220-53221/2014 Dated : 30/07/2014 Per. Archana Wadhwa :-
Both the appeals, one filed by the assessee and other by the Revenue are being disposed of by a common order as they arises out of the same set of facts and circumstances.
2. M/s Maruti Udyog is engaged in the manufacture of motor vehicles and is a good prime tax payer. It so happened that on 31/03/92, the assessees Jurisdictional Central Excise Assistant Commissioner made an oral request to them to deposit some amount in the exchequers accounts. As is common knowledge, such requests are usually made for increase in the Revenue collections during a particular financial year and to neutralize the short falls, if any, for the year. The assessee accepted the said request of the Department and deposited an amount of Rs. 4.5 crores vide TR-6 challan, by making a debit entry in their PLA account. The said deposit were made under protest and letter dated 31/03/92 was also written by the appellant to the Assistant Collector of Central Excise, Gurgaon detailing about the dispute going on between the Revenue and the assessee as regards the vehicles, which were exported earlier and returned back as damaged vehicles and received by the assessee in their factory. The assessee contended that there would be no duty liability in respect of the said vehicles. The relevant part of the letter is reproduced below :-
We, therefore, request you not to insist on payment of any excise duty on the returned damaged vehicles which were originally cleared for export under bond. Be that as it may, we received a oral request from the Assistant Collector/ Collector for payment of excise duty on the return of the damaged vehicles on adhoc basis before 31st March, 1992 and in deference to such request we are making the payment of Rs. 4.5 crores as duty by way of debit in the PLA vide debit No. 313B dated 31st March, 1992. We wish to submit that this payment is made purely on adhoc basis under protest purely to maintain cordial relation with the Excise Department and it should not be misconstrued as accepting the liability to pay duty on the return of damaged vehicles.
3. The assessee further requested the Assistant Commissioner to give a ruling on their letter of protest and sanction the refund of the duty so deposited by them under protest at an early date.
4. As a result of the above deposits made by them, the assessee subsequently claimed the refund of the same vide letter dated 14/05/92. In response to the said letter, the Assistant Commissioner sanctioned the refund of Rs. 4,06,55,187/- in his file on 02/05/95, by making endorsements on the copy of the PLA extract and the relevant TR-6 challans. However, no orders was passed by the Assistant Commissioner and as per the assessee, no refunds were actually given to them.
5. In the meanwhile the dispute in respect of the duty liability on the vehicles originally exported, damaged and returned to the assessees factory was going on and the two show cause notices issued to the assessee on 03/01/92 and 02/04/92 were subsequently dropped by the Commissioner of Central Excise vide his order dated 09/11/98. It stands recorded in the said order of the Commissioner that all the documents stand verified by the Department and no duty liability is required to be confirmed against the assessee. This order of the Commissioner was not challenged by the Revenue and stands accepted and attained finality.
6. As regards the assessees claim of refund, it is noted that the Assistant Commissioner passed an order-in-original dated 23/01/96 sanctioning refund of Rs. 2,71,78,973/- and rejecting the balance amount of Rs. 1,71,21,027/- on the ground that the original documents relating to the export of the vehicles have not been submitted by the assessee.
The said order of the Assistant Commissioner was challenged before the Commissioner (Appeals), who vide his order dated 09/03/04 remanded the matter to the Assistant Commissioner with certain directions and for re-examination of the whole issue. The said order of Commissioner (Appeals) was challenged by the assessee before Tribunal on the ground that Commissioner (Appeals) has no powers to remand the matter. The assessees appeal was disposed of by the Tribunal vide its final order No. 940/2004-NB A dated 02/09/04, remanding the matter back to Commissioner (Appeals) for decision on merits.
7. On remand, Commissioner (Appeals) decided the issue vide the present impugned order-in-appeal dated 30/03/2005. He allowed the refund claim of Rs. 4,06,55,183/- and rejected the balance claim of Rs. 43,44,813/-, by taking note of the file order of Assistant Commissioner allowing the refund of Rs. 4.06 crores and rejected the balance on the ground that the assessee did not challenge the said file order of the Assistant Commissioner and as such he is bound by the same.
8. The said order of the Commissioner (Appeals) stand challenged by the assessee on the ground that the Assistant Commissioner only sanctioned the refund claim in his file and never passed an appealable order. As such, there was no question of challenging the same. The appealable order was subsequently passed by the Assistant Commissioner on 23/01/96 sanctioning refund of Rs. 2,71,78,973/- and rejecting the balance of Rs. 1,71,21,027/-. If the earlier file order of Assistant Commissioner dated 04/05/95 was a final order, there was no reason for the Assistant Commissioner to subsequently decide on the refund application by a proper appealable order dated 23/01/96.
Revenue has challenged the order of Commissioner (Appeals) on the ground that the Assistant Commissioners order dated 23/01/96 granting refund of approximately Rs. 2.71 crores and rejecting the balance of Rs. 1.71 crores should be restored.
9. Dealing with the assessees appeal, we find that it is a classic case of pressurizing the big units to deposit amounts on the last date of the financial year to neutralize the short falls in the Revenues collection. The letter dated 31/03/92 addressed by the assessee as also the TR-6 challans produced on record clearly revealed that the said deposit of Rs. 4.50 crores was an adhoc deposit amounts paid under protest. The said deposit was not in relation to any outstanding confirmed demands against the assessee. At the most, it can be said to be relatable to the vehicles which were exported, damaged and returned to the assessee. However, the proceedings initiated against the assessee in respect of said demands were consequently dropped by the Commissioner on 09/11/98. The said order of the Commissioner had attained finality in as much as the same was not appealed against by the Revenue. As such, no demand stands confirmed against the assessee. In fact this factual position does not stand disputed by the Revenue.
10. It is in these circumstances that Commissioner (Appeals) has allowed the refund of Rs. 4.06 crores approximately. However, instead of allowing the refund of the entire deposit of Rs. 4.50 crores, he has restricted the said refund to Rs. 4.06 crores by taking note of the file sanction by the Assistant Commissioner on 04/05/95 and by holding that as the assessee did not file any appeal against the said order of the Assistant Commissioner, the refund has to be restricted to Rs. 4.06 crores approximately.
11. Admittedly the Assistant Commissioner sanctioned the refund of Rs. 4.06 crores approximately in his file only on 04/05/95, by making endorsement on the copy of PLA extract and the relevant TR-6 challan. There was admittedly no order of the Assistant Commissioner in an appealable form, issued after observing the principals of natural justice. It was only a file noting. In fact, it seems that the said sanctioning of refund claim on the file itself was not considered an order, even by the Revenue itself, in as much as the Assistant Commissioner subsequently passed a proper order-in-original on 23/01/96. As such, we fully agree with the assessee that the action on the part of the Commissioner (Appeals) to restrict the refund to an amount of Rs. 4.06 crores is not proper and the assessee would be entitled to the entire refund claim of Rs. 4.50 crores.
12. As regards the Revenues appeal, the prayer is to restrict the refund claim to Rs. 2.71 crores, as done by the Assistant Commissioner in his order-in-original impugned before Commissioner (Appeals). However, we find that the said order was passed by the Assistant Commissioner on 23/01/96 and a part of the refund claim stand rejected on the ground that the requisite original document relatable to export of the vehicles are not available. However, subsequent to the passing of the said order of the Assistant Commissioner, the Commissioner of Central Excise, in a separate proceedings relating to the demand of duties in respect of the export vehicles, dropped the proceedings vide his order dated 09/11/98. Once the demand in respect of export vehicles stands dropped by the Commissioner vide his order dated 09/11/98, the reasoning of non-availability of original documents by the Assistant Commissioner adopted in his order dated 23/01/96 is no longer available to the Revenue for denial of a part of the amount deposit so made by the assessee. As such, we find no merits in the Revenues prayer.
13. The gist of the above development show that the appellant had made an adhoc deposit of Rs. 4.50 crores on 31/03/92; that they subsequently filed the refund claim; the said refund claim was dealt by the Assistant Commissioner vide his order dated 23/01/96; that the said order rejecting the part of the refund claim was passed prior to the order dated 09/11/98 passed by the Commissioner dropping the demand relatable to the export vehicles; that the said order of the Commissioner was not challenged; that there is no duty demand outstanding against the assessee. In view of the above, the assessees appeal is required to be allowed resulting in grant of full refund claim of the deposits and Revenues appeal is required to be rejected. We order accordingly.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
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