Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Cus. And C. Ex. vs Empee Sugar And Chemicals Ltd. on 15 December, 2006
Equivalent citations: 2007[7]S.T.R.622
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with Order-in-Appeal No. 7/2005-C.E., dated 19-8-2005 by which the refund claim of Rs. 30,000/- paid by the assessee towards Educational Cess on 3000 MTs of molasses has been allowed. The finding recorded in Para 3 of the impugned order is reproduced herein below.
3. I have gone through the case records as well as written submissions and oral submissions made during the personal hearing. The alcohol division of M/s. Empee Sugar and Chemical Limited has not paid education cess of Rs. 30,000/- to their sugar unit, as it borne by Chartered Accountant's certificate dated 13-1-2005. It has been certified that Industrial Alcohol Division has not passed the incidence of education cess to the ultimate buyers. The appellant has also produced their accounts statements with clear undertaking that the amount of education cess though has been show in their Excise Invoice has not been paid by the alcohol unit to the sugar unit. Department has not produced any evidence to support that the incidence of education cess has not been passed on to the buyer. There is no reason to doubt the veracity of evidence produced by the appellant. Accordingly, it is held that the refund claim is not barred by unjust enrichment clause. In view of the above position, I pass the following order:
Order I allow the appeal filed by the appellant and set aside the order passed by the Assistant Commissioner, Customs & Central Excise, Nellore Division.
2. The Revenue contend that the Education Cess is not refundable to the assessee as they have not proved that the incidence of the said Cess has not been passed on to the buyer. The Department does not want to accept the Chartered Accountant's certificate.
3. I have heard both sides in the matter.
4. I am of the considered opinion that the Commissioner (A) is justified in arriving at the above conclusion in holding that the Cess has not been passed on to the buyer. The Chartered Accountant cannot give an incorrect or false certificate, as such issuance of certificate will have penal consequences. It has evidential value and it has to be accepted. There is no merit in this appeal and the same is rejected.
(Pronounced and dictated in open Court)