Custom, Excise & Service Tax Tribunal
M/S. Voltas Ltd vs Commissioner Of Central Excise, ... on 3 February, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. E/177, 178/08 (Arising out of Order-in-Appeal No. SRK/474/M-III/2007 dated 28.11.2007passed by the Commissioner (Appeals) Central Excise, Mumbai-Zone-II For approval and signature: Honble Shri A.K. Srivastava, Member (Technical) ============================================================
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M/s. Voltas Ltd.
:
Appellants
VS
Commissioner of Central Excise, Mumbai-III
Respondents
Appearance
Shri Sheeraj Rastougi Advocate with
Shri V. Bilve, Advocate for Appellants
Shri Kishorilal, Authorized Representative (SDR)
CORAM:
Shri A.K. Srivastava, Member (Technical)
Date of hearing : 03.02.2009
Date of decision: .02.2009
ORDER NO.
Per : Shri A.K. Srivastava, Member (Technical)
These appeals have been filed by M/s. Voltas Ltd., Thane against the Orders-in-Appeal both dated 28.11.2007 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone II. The Commissioner (Appeals), vide the impugned orders, has upheld the Orders-in-Original dated 27.12.2006 and 19.1.2007 passed by the Assistant Commissioner of Central Excise, Wagle-II Division, by which the Assistant Commissioner has rejected the refund claims of Rs.3,32,540/- and Rs.1,41,352/- on the grounds of unjust enrichment.
2. Heard both the sides and perused the records.
3. Since the issue involved in both the appeals relates to the applicability of the unjust enrichment clause, these are being taken up for disposal by a common order.
4. Appeal No. E/177/08 Amount involved Rs. 3,32,540/-.
The admissibility of refund claim on merits is not under dispute. The appellants have cleared the goods under four invoices paying duty @ 16% i.e., Rs. 6,64,084 to M/s. BHEL Ltd. Out of the above amount, the appellants have recovered duty @ 8% amounting to Rs. 3,32,541/- from M/s. BHEL Ltd. as per the letter dated 16.08.2006 of M/s. BHEL Ltd. M/s. BHEL Ltd. have also certified vide their letter dated 18.1.2007 that they have not availed any Cenvat Credit of the duty paid on the goods supplied by the appellants under the cover of the four invoices in question. The appellants have contended that M/s. BHEL Ltd. are a Public Sector Undertaking and the certificates issued by them should be accepted as there is no reason to doubt the same. I find that the authenticated certificate as regards the availment/non-availment of the Cenvat Credit from the Jurisdictional Range Supdt. has not been produced by the appellants. Further, there is nothing on record to suggest that the relevant invoices were withdrawn on modified by other document like credit note. The balance amount of Rs. 3,32,540/- has been shown as recoverable excise claims in the books of accounts of the appellants, which implies that the said amount is recoverable from M/s. BHEL Ltd. in future. In view of the above, I am of the opinion that the appellants have not produced the clinching evidence to rebut the presumption that the incidence of duty has been passed on to the buyer. Hence their refund claim has been rightly rejected by the lower authorities on the ground of unjust enrichment. I uphold the orders of the lower authorities and reject the appeal filed by the appellants.
5. Appeal No. E/178/08 Amount involved Rs. 1,41,352/-.
In this case also, the admissibility of the refund claim on merits is not under dispute. The appellants have produced the undated certificate from M/s. OCAP Chassis Parts Pvt. Ltd., the buyer certifying that they have paid Rs. 8.60,000/- being basic value of Diesel Fork Lift Truck to the appellants against their invoice dated 28.12.2005 for Rs. 10,40,366/-. The buyer further stated in the said certificate that they had issued CT-3 No. 5066 dated 29.11.2005 for procuring the above mentioned item. However, the appellants supplied them the item after charging Excise duty. They have also certified that the Central Excise duty amount of Rs. 1,40,352/- has not been paid to the appellants and they have also not taken the Cenvat Credit on the above item. I find that in this case also the appellants have not furnished an authenticated certificate from the Jurisdictional Range Supdt. as regards the availment/non-availment of Cenvat Credit of Rs.1,41,352/-. It is also not forthcoming whether the invoice dated 28.12.2005 was withdrawn or modiified by other document like credit note. In this case also, I am of the view that the appellants have not produced the clinching evidence to rebut the presumption that the incidence of duty has been passed on to the buyer. Hence, the unjust enrichment clause is attracted and the appellants are not entitled to the refund claim. I uphold the orders of the lower authorities and reject the appeal.
(Pronounced in court on 02/2009)
A.K. Srivastava
Member (Technical)
Sm
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