Custom, Excise & Service Tax Tribunal
Shivanth Rai Harnarain (India) Limited vs Commissioner Of Central Excise, ... on 26 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 27179 / 2013 Appeal(s) Involved: C/50/2009-SM [Arising out of Order in Appeal 65-2008 dated 20/10/2008 passed by CC,CE&ST(Appeals), Visakhapatnam. SHIVANTH RAI HARNARAIN (INDIA) LIMITED, B-16, BBHAGAWN DASS NAGAR, NEW DELHI Appellant(s) Versus Commissioner of Central Excise, Service Tax and Customs - VISAKHAPATNAM-II CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM, ANDHRA PRADESH 530035 Respondent(s)
Appearance:
Shri R.S. Sharma, Advocate C-9/9656, Vasant Kunj, New Delhi -110070. For the Appellant Shri A.K. Nigam, Addl. Commissioner(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Date of Hearing: 26/12/2013 Date of Decision: 26/12/2013 Order Per : B.S.V.MURTHY Brief facts of the case are that the appellant had exported rice vide shipping bill No.6100670 and paid cess under Agriculture and Processed Food Products Export Cess, 1985 (APFPEC Act) on the FOB value amounting to Rs.6,54,303/- in respect of exports made on or after 01/06/2006. Consequent to the abolition of the APFPEC Act w.e.f. 01/06/2006 vide the Cess Laws (Repealing and Amending) Act, 2006, the appellant filed a claim for the refund of cess paid to the Government. The adjudicating authority vide his order dt. 31/05/2007 rejected the claim of the appellant, since the same have been passed on to the buyers, and credited the same to the Consumer Welfare Fund. The adjudicating authority while passing the order observed that the refund claim was filed with the stipulated time and the cess was paid subsequent to 01/06/2006 and the refund claim merits sanction. On verification of the bank realization certificates, however, the adjudicating authority observed that the appellant has realized the full amount of FOB value without any deduction of the amount of cess paid by them. Hence the incidence of cess in this case has not been borne by the appellant themselves but passed on to the buyers inasmuch as the FOB amount has been realized in full by the appellant as is evident from the bank realization certificates and therefore held that the refund in this case shall be sanctioned and credited to the Consumer Welfare Fund in terms of Section 28B read with Section 27(2) of the Customs Act, 1962. On appeal by the appellant, the Commissioner(Appeals) upheld the Order-in-Original. Hence the present appeal.
2. Heard both sides. I find that the issue is no longer res integra and is covered by the decision of this Tribunal in the case of Little Bee Impex Vs. CC, Amritsar [2013(293) ELT 226 (Tri. Del.)]. In this case, the first ground for rejection is unjust enrichment and as far as unjust enrichment is concerned, the issue is squarely covered by the decision of the Honble High Court of Andhra Pradesh in the case of Asia Pacific Commodities Ltd. Vs. Asst. Commissioner, Customs, Kakinada [2012(280) ELT 481 (AP)] wherein it has been held that unjust enrichment clause would not be applicable to cases similar to the ones of the appellant before me. Therefore the rejection of refund claim on the ground of unjust enrichment cannot be sustained. The Department has also taken up another ground which was not there before the lower authorities. This means that the assessment order was not challenged by the appellant and therefore the assessment of the shipping bill has attained finality and consequently no refund claim could have been considered on merits. On this issue as submitted by the learned counsel, the decision of the Tribunal in the case of Little Bee Impex (supra) covers the case in favour of the assessee. The Tribunal observed that there was no lis between the assessee and the Revenue and a simple case of payment of export cess on a mistaken belief not rectified by the Revenue, non-filing of appeal against assessment cannot act fatal to the refund claim. In view of the decision of the Honble High Court of Andhra Pradesh which covers both the issues, I allow the appeal filed by the appellant with consequential relief, if any.
(Order dictated and pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja 2