Custom, Excise & Service Tax Tribunal
M/S. Sesha Sayee Paper And Boards Ltd vs Cce, Salem on 13 January, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/467/2012
(Arising out of Order-in-Appeal Nos. 33/2012-STX dated 31.08.2012, passed by the Commissioner of Customs and Central Excise, Salem).
For approval and signature
Honble Shri R. PERIASAMI, Technical Member
M/s. Sesha Sayee Paper and Boards Ltd. : Appellant
Vs.
CCE, Salem : Respondent
Appearance Shri S. Muthuvenkataraman, Adv., for the appellant Shri K.P. Muralidharan, AC (AR), for the respondent CORAM Honble Shri R. PERIASAMI, Technical Member Date of Hearing/Decision : 13.01.2015 FINAL ORDER No. 40054 / 2015 The appellant filed appeal against the impugned order dated 31.08.2012 passed by the Commissioner (Appeals). The brief facts of the case are that the appellants claimed refund of excess duty paid on account of change of duty rate for one day ie., on 07.12.2008, where the rate of duty on paper and paper products reduced from 8% to 4% vide Notification No. 58/2008 dated 07.12.2008. The adjudicating authority denied the refund. The Commissioner (Appeals) in the Order-in-Appeal dated 19/2010-CE dated 19.03.2010 allowed the appeal with consequential relief. The Revenue filed appeal against the said Commissioner (Appeals) order. This Tribunal vide in Final Order No. 348/2011 dated 22.02.2011 had allowed the Revenues appeal by setting aside the Order-in-Appeal and restored the Order-in-Original passed by the adjudicating authority. During the pendency of the proceedings before this Tribunal, the appellants have received the refund consequent to the Order of the Commissioner (Appeal). The department issued show cause notice dated 06.07.2010 demanding erroneous refund and the same was confirmed by the Asst. Commissioner vide Order-in-Original No. 14/2011 dated 30.11.2011. The lower appellate authority in the impugned order dated 31.08.2012 had upheld the adjudication order and dismissed the appeal filed by the appellants by relying the Tribunals order dated 22.02.2011. Hence, the appellants preferred the present appeal.
2. The Ld. Advocate for the appellant submits that they have duly complied the stay order of this Tribunal and paid the entire refund amount of Rs. 2,43,349/- along with interest under protest vide debit entry sl. No. 4821 dated 18.03.2013 and under challan No. 30 dated 20.03.2013. He submits that the Tribunals Final Order dated 22.2.2011 allowed the departments appeal and they have filed CMA against the Order of the Tribunal dated 22.02.2011, before the Honble High Court of Madras, which is still pending before the Honble High Court of Madras.
3. On the other hand, the Ld. AR reiterates the findings of the impugned order and submits that the issue has already been settled by this Tribunal against the appellants vide the Tribunals Final Order dated 22.02.11 and no stay has been granted by the Honble High Court.
4. I have carefully considered the submissions of both sides and perused the records. In the present appeal, the department issued show cause notice on erroneous sanction of refund which was confirmed by the Lower Authority and upheld by the Lower Appellate Authority. The whole issue is on the outcome of the parallel proceedings initiated by the Department on consequent to the Order-in-Appeal dated 19.03.10 on the erroneous sanction of the refund. This Tribunal has ordered for pre-deposit of entire duty vide Miscellaneous Order No. 40729/2013 dated 15.03.2013. The appellants have complied the Stay order dated 26.04.2013. On appeal by Revenue this Tribunal in Final Order dated 22.02.11 has allowed Revenue appeal and set aside the Order-in-Appeal dated 19.03.2010 and restored the Order-in-Original. The relevant portion of the Tribunals order is reproduced as under:-
6.4 Coming to the facts of the present case, as already noted, the respondents raised invoices indicting higher rate of duty and collected the same from their customers. The payment of excise duty is not even linked to recovery of the value of the goods from the customers. The indication of duty amounts in the invoices prepared in terms of Section 12 is clearly evidence for passing on the credit. As held in the case of Devi Bhoomi Spinning & Weaving Mills (supra), the relevant test to ascertain as to whether the duty burden has been passed on or not is indication of the duty amount separately in the invoices raised under the Section 12 of the Central Excise Act.
6.5 If the contention of the assessee is accepted, it would be lead to a situation that after years also they would claim that they are taking over the burden of duty initially passed on to their customers by issuing of credit notes. If the credit notes issued after four months can be accepted, there is no bar to accept the credit notes issued after a few years also. Therefore, this reasoning that once credit note is issued the manufacturer should be deemed to have absorbed the duty burden is to be rejected.
6.6. A perusal of the show cause notice clearly indicates that the basis for proposal to deny the refund was the initial collection of higher amount of duty by the respondents. Certain observations that there is no evidence that the burden has not been passed on downstream has no relevance to the decision taken by the original authority.
7. In view of the above, order of the Commissioner (Appeals) sanctioning the case refund is set aside and the order of the original authority ordering the deposit of the refund to the Consumer Welfare Fund is restored. Considering the above order that this Tribunal has already decided settled the issue in favour of Revenue and held that the appellants are not eligible for refund on account of unjust enrichment and set aside the order of the Commissioner (A) and restored the adjudication order. The Commissioner (Appeals) has rightly rejected their appeal by relying this Tribunals above Final order. Though the appellants have filed CMA No. 1929/2011, which is pending before the Honble High Court, there is no stay against the final order of the Tribunal. I do not find any infirmity in the impugned order rejecting the appellants appeal. Accordingly, the appeal is dismissed and the impugned order is upheld.
(Order pronounced and dictated in the open Court) (R. PERIASAMI) TECHNICAL MEMBER BB 1