Custom, Excise & Service Tax Tribunal
Cc, Bangalore vs M/S. Sri Siddhi Freezers & Exporters ... on 18 October, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 18/10/2010
Date of decision:18/10/2010
Appeal No.C/427/09; C/CO/231/09
(Arising out of Order-in-Appeal No.19/2009 dt. 20/2/2009
passed by CC(Appeals), Bangalore)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
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?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CC, Bangalore
..Appellant(s)
Vs.
M/s. Sri Siddhi Freezers & Exporters Pvt. Ltd.
Respondent(s)
Appearance Mr. K.S. Chandrasekhar, JDR for the Revenue.
Mr. N. Anand and Mr. Anirudha Naik, Advocates for the respondent.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This appeal is filed by the Revenue against the Order-in-Appeal No.19/2009 dt. 20/2/2009.
2. The relevant facts that arise for consideration are that the respondents herein, during the period 13/10/2006 to 23/01/2007, were paying cess on the agricultural products exported i.e. exports of Frozen Sea Foods under the Agricultural Produce Cess Act, 1940 (hereinafter referred to as the Act). The said Act was repealed on 25/9/2006. Though the Act was repealed, the respondent had continued to pay the cess amount and subsequently realizing their mistake, filed a refund claim of the cess paid after 26/9/2006. The said refund claim as filed by the respondent was scrutinized by the Adjudicating Authority, and a show-cause notice was issued for non-maintainability of the said refund claim. The Adjudicating Authority vide Order-in-Original No.14/2008(Refunds) dt. 16/6/2008 sanctioned an amount of Rs.5,00,138/- to the respondent and credited an amount of Rs.14,334/- to the Consumer Welfare Fund in terms of Section 27(2) of Customs Act, 1962. Respondents were not aggrieved by the crediting of an amount of Rs.14,334/- to the Consumer Welfare Fund and accepted the Order-in-Original. The Revenue was aggrieved by the said Order-in-Original and they preferred an appeal before the ld. Commissioner(Appeals). Ld. Commissioner(Appeals), after considering the submissions made by both sides, came to the conclusion that the Order-in-Original is correct and coming to such conclusion rejected the appeal filed by Revenue. Hence this appeal.
3. Ld. DR appearing on behalf of the Revenue would submit that the order of the ld. Commissioner(Appeals) is wrong and would also rely upon the grounds of appeal. For the brevity sake, I reproduce the grounds of appeal taken by the Revenue in the current appeal before me.
4. Ld. Counsel appearing on behalf of the respondents would submit that the ld. Commissioner(Appeals) has correctly followed the law. It is his submission that the Adjudicating Authority has followed the order-in-appeal No.168/2007-Cus(B) dt. 31/12/2007 passed by the ld. Commissioner(Appeals) in an identical issue, which has not been appealed by the Revenue.
5. After considering the submissions made by both sides and perusal of the records, I find that the issue involved in this case is regarding the refund of an amount which has been paid by the respondent under mistake. It is undisputed that the amount paid by the appellant during the relevant period 13/10/2006 to 23/01/2007, and is not liable to pay the cess under the Agricultural Produce Cess Act, 1940. This fact being undisputed, the amount which is collected by the Revenue is not in accordance with the law.
6. Further, I find from the grounds raised by the Revenue that Revenue is not disputing the fact that the amount received by the respondent from the up-country party is less than the FOB value of the shipping bills, the Department called for explanation and assessee through their representative explained to the Adjudicating Authority that the amount being an amount of cess, which was paid but was not payable and hence, did not collect this amount from the foreign purchasers. I also find that this explanation was accepted by the Adjudicating Authority and upheld by the ld. Commissioner(Appeals). From the grounds of appeal which has been reproduced above, it is seen that the Revenue has not put forth any evidence to contradict the concurrent factual finding of both the lower authorities. In the absence of any such evidence or submission, an adverse inference has to be drawn against the Revenue.
8. In view of the above findings of the concurrent findings by lower authorities on the factual matrix, in the facts and circumstances of the case, I do not find any merits in the appeal filed by the Revenue. The impugned order is upheld as correct and legal and does not suffer from any infirmity. Revenues appeal is dismissed as devoid of merits. Cross-objection filed by the respondents being in support of the Order-in-Appeal is also disposed off.
(Pronounced and dictated in open court) (M.V.RAVINDRAN) MEMBER (JUDICIAL) Nr 5