Custom, Excise & Service Tax Tribunal
M/S. Pearl Polymers Ltd vs Commissioner Of Central Excise & ... on 3 July, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/2723/2003-Mum. (Arising out of Order-in-Appeal No. RJB/M-III/285/2003 dated 10.7.2003 passed by the Commissioner of Central Excise & Customs, Mumbai-VII ) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K.Jain, 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 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?
4. Whether Order is to be circulated to the Departmental :
authorities?
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M/s. Pearl Polymers Ltd.
:
Appellant
VS
Commissioner of Central Excise & Customs, Mumbai VII
:
Respondent
Appearance
Shri V. Sridharan, Advocate with
Shri Rajesh Oswal, C.A. for Appellant
Shri B. S. Meena, Additional Commissioner (A.R) for respondent
CORAM:
Mr. S.S. Kang, Vice President
Mr. P.K. Jain, Member (Technical)
Date of hearing : 3/7/2013
Date of decision : 3/7/2013
ORDER NO.
Per : S.S. Kang
Heard both sides.
2. Appellant filed this appeal against the impugned order whereby the refund claim of the appellants were rejected.
3. The brief facts of the case are that appellants are engaged in the manufacture of plastic products falling under Chapter 39 of the Central Excise Tariff Act, 1985. i.e. pet bottles and caps. The customers of appellant supplied cartons, free of cost for the purpose of packing pet bottles. Revenue directed the appellants to add the cost of cartons to the assessable value of the pet bottles for the purpose of payment of Central Excise duty. The appellants paid the duty and vide letter dt. November 16th 2000 under protest in the letter appellants specifically mentioned that they will pay duty under protest from November 2000 onwards. Thereafter, appellants filed refund claim the same was rejected by the adjudicating authority and the Commissioner (Appeals) also dismissed the appeal filed by the appellant.
4. The contention of the appellant is that the cost of cartons supplied free by their customer is not to be included in the assessable value of the pet bottles. The appellant relied upon the Honble Supreme Court in the case of Jauss Polymers Ltd. Vs. Commissioner of Central Excise, Meerut reported in 2003 (157) E.L.T. 626 (S.C.). In view of the above decision of Honble Supreme Court, the appellants are not liable to pay duty by adding the cost of cartons supplied free by their customer to the assessable of the pet bottles. The duty has been paid under protest the refund cannot be rejected as time barred. The appellant also argued that burden of duty has not been passed on to the customers. The appellant stated that had not received differential duty paid from their customers. Hence, the rejection of refund on the ground of unjust enrichment is also sustainable.
5. Revenue relied upon the finding of the lower authority and submitted that the appellants had not produced any evidence that burden of duty has not been passed on. The Revenue relied upon the finding of the adjudicating authority and also grounds of appeal before the Commissioner (Appeals) where no such averment was made.
6. We find that in the present case the cartons are supplied free of cost by their customers for packing of the pet bottles. The Honble Supreme Court in the case of Jauss Polymers Ltd.(supra) held that cost of cartons and labels supplied by the customers to be included in the assessable value of the plastic pet jars manufactured by the manufacturer. In view of the above, we find merit in the contention of the appellant that the cost of cartons supplied free by the customer is not is not to be included in the assessable value of pet bottles.
7. In respect of the refund of duty paid we find that appellant vide letter dt. 16.11.2000 made protest and specifically stated that after November 2000 the duty is to be paid under protest. In view of this, we find merit in the contention of the appellant is that the refund is not time barred.
8. In respect of unjust enrichment we find the adjudicating authority specifically held that no evidence is produced to show that burden of duty has not been passed on. Similarly the grounds of appeal as summarized in the impugned order passed by Commissioner (Appeals) there is no such averment. In view of the above, the matter is remanded to the adjudicating authority to decide the issue of unjust enrichment after affording an opportunity of hearing to the appellants.
(Dictated in court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President Sm ??
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