Custom, Excise & Service Tax Tribunal
Tirumala Bearings (P) Ltd vs Cce&C(Appeals) on 14 October, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/251/2007-DB [Arising out of Order-in-Appeal No. 76/2006(V)CH dt. 11/12/2006 by Commissioner of Central Excise and Customs(Appeals), Visakhapatnam] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should 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? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Tirumala Bearings (P) Ltd. 34, Strand Road, Ground Floor, Kolkata 700 001. Appellant(s) Versus CCE&C(Appeals), Visakhapatnam Respondent(s)
Appearance:
Shri Kushagra Shah, Advocate For the Appellant Shri R. Gurunathan, Addl.. Commissioner(AR) For the Respondent Date of Hearing: 31/08/2015 Date of Decision: ..
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER Final Order No. / 2015 Per : ARCHANA WADHWA As per facts on record, the appellant imported bearings under the declared value of Rs.15,64,427/-. The same was enhanced by the authorities from declared value to Rs.35,86,846/- resulting in differential excise duty of Rs.12,78,786/-.
2. On an appeal filed by the appellant before the CESTAT, the said orders of the authorities below were set aside with consequential relief admissible to the appellant in accordance with law. Accordingly they filed a refund claim of Rs.12,78,786/- with the original adjudicating authority. The same stands rejected on the ground of unjust enrichment. The order of the Assistant Commissioner rejecting the refund was upheld by Commissioner(Appeals). Hence the present appeal.
3. The sole question required to be decided in the present appeal is as to whether the refund claim filed by the assessee in terms of the Tribunals order would be hit by the principles of unjust enrichment or not. The appellant during the course of adjudication submitted Chartered Accountant certificate, details of sales, balance sheet, audited report etc. to support their claim that there was no unjust enrichment. The Chartered Accountant certificate stands held as not a proper document for countering the Revenues allegation of unjust enrichment. Further the adjudicating authority has observed that though the appellant had transferred the said amount of Rs.12,78,781/- to advance accounts and the balance amount was transferred to purchase but the balance sheet did not clearly indicate as to how the excess duty was transferred to advance account. He further observed that though the appellants had showed the sales invoices raised by them in favour of the buyers and some of the goods were sold to other traders in Kolkata but the invoices are not giving the address of the buyers and as such it cannot be concluded that the excess duty incidence has not been passed on to the consumers. He accordingly held that the appellant has not been able to substantially prove that the burden of duty incidence has not been passed on to the ultimate consumers. Accordingly he directed the refund to be deposited in consumer welfare fund. To the similar effect is the order of the Commissioner(Appeals).
4. As against the above, the appellants have contended that they have submitted Chartered Accountant certificate, which should be binding on the Revenue authorities. The authenticity of the said certificate has not been doubted by the authorities below and the Chartered Accountant being a responsible person, controlled by Institute of Chartered Accountant of India, which is a statutory body, could not have given a wrong certificate. There is no reason as to why the authorities below should reject the same without any reason.
They have further contended that they have produced all the sale invoices with quantity and value along with memos / local bills. Merely because the buyers addresses were not given, it will not make the said invoices as bad in law so as to conclude against them.
5. The facts are not in dispute. Admittedly the appellants have given a Chartered Accountant certificate indicating that duty element has not been received by them from their buyers. As per the majority order of the Tribunal in the case of Business Overseas Corporation Vs. CCE(Import & General), New Delhi [2015(317) ELT 637 (Tri. Del.)], it was observed that the production of a Chartered Accountant certificate shifts the burden to the Revenue to prove recovery of extra duty collected from the customers by producing positive evidence. As the Revenue failed to advance any evidence to rebut the Chartered Accountant certificate, the allegation of unjust enrichment cannot be upheld. Similarly in the case of Deepak Internationa Vs. CC&ST, Kanpur [2014(304) ELT 438 (Tri. Del.)], it was observed that Chartered Accountant certificate certifying extra duty paid not recovered from buyers to be given due evidentiary value especially when the said extra duty reflected in balance sheet as loan and advances recoverable from the Revenue. The appellants have taken a categorical stand in the present proceedings that the adjudicating authority examined the balance sheet of the year 2000-2001 whereas the importation was made in the month of March 2001 and it was reflected in the next financial year, which stands taken into account by the Chartered Accountant. Further we find that the Tribunal in the case of CCE&ST, Jalandhar Vs. Shankar Printing Mills [2015(324) ELT 295 (Tri. Del.)], it was observed that as long as the amounts were shown in the balance sheet as recoverable and certified by the Chartered Accountant, the assessee can safely be held to have fulfilled principles of unjust enrichment. To the same effect is the Tribunals decision in the case of CCE, Surat-II Vs. Binkaia Synthetics Ltd. [2013(294) ELT 156 (Tri. Ahmd.)]. As such, we are of the view that the Chartered Accountant certificate is a good evidence to show that the disputed duty amounts have not been collected from the customers and the same cannot be sidelined lightly without production of any other evidence to show that the said certificate is a wrong certificate.
6. Apart from the above, we also note that the appellants have produced sales invoices indicating that the sales were made against cash and no excess duty was recovered by them. The adjudicating authority has not taken into consideration the said invoices merely on the sole ground that the buyers address is not given. Admittedly buyers names are there and mere absence of the addresses from the sales invoices cannot be adopted as a reason to reject the said evidence.
7. In view of the above, we hold that the denial of the refund, which has arisen as a consequence of prolonged litigation by the appellant and the ultimate order of the Tribunal in their favour, on the ground of unjust enrichment is not justified. We accordingly set aside the impugned order and allow the appeal with consequential relief.
(Pronounced on.) ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER Raja..
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