Custom, Excise & Service Tax Tribunal
M/S. Bannari Amman Sugars Ltd vs Commissioner Of Central Excise, ... on 31 October, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 26889 / 2013 Appeal(s) Involved: E/26276/2013-DB [Arising out of Order in Appeal 02/2013/MY dt 23/01/2013 passed by Commissioner of Central Excise (Appeals), Mangalore.] M/s. Bannari Amman Sugars Ltd Alaganchi Village, Nanjangud Taluk MYSORE KARNATAKA Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax - MYSORE S1-S2, VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Respondent(s)
Appearance:
Mr.P.C. Anand, Advocate CHAKRAVARTHY ASSOCIATES NO.13, SECOND MAIN ROAD, CIT COLONY CHENNAI.600004 TN For the Appellant Mr. Sabrina Cano, Superintendent (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI ANIL CHOUDHARY, JUDICIAL MEMBER Date of Hearing: 31/10/2013 Date of Decision: 31/10/2013 Order Per : B.S.V. MURTHY, Even though this appeal is listed down below, it was taken up since a stay application filed by the appellant in respect of CENVAT credit on input services was heard today and on the last occasion, when the matter had come up based on the learned counsels request, the bench had directed that both may be listed today.
2. The appellants are engaged in the manufacture of sugar. They have co-generation plant, where they produce electricity. They also have facility for manufacture of rectified spirit. During the period from April 2010 and March 2011, the appellant was clearing all the molasses on payment of duty irrespective of its consumption for the purpose of manufacture of rectified spirit or dutiable product like fusel oil and industrial alcohol. Subsequently, they realized that they need not have paid the duty on molasses used in the manufacture of industrial alcohol and fusel oil and filed a refund claim on 23.6.2011 claiming refund of Rs.3,55,73,625/-. Refund claims have been rejected by the lower authorities on the ground that appellant did not provide necessary details as regards the actual quantum used in the manufacture of dutiable products and non-excisable / non-dutiable products. Further, in respect of the same product on earlier two occasions, the refund claims have been rejected.
3. Since the fact that there were two earlier orders on the same issue came to be known only at the time of dictation. We are not in a position to go into those cases also and find out how they were rejected and what is the ground? Therefore, we proceed to determine the issue before us independently of the earlier cases.
4. After hearing both the sides, what emerges after manufacture of sugar by the appellant is in fact the molasses as by-product. It could have been cleared without payment of duty when it was for captively consumed for manufacture of dutiable product. Of course this would have necessitated the need for maintaining separate accounts for molasses, since in respect of captive consumption it would have been cleared without payment of duty and in respect of molasses used for manufacture of non-excisable /non-dutiable products, it would have been cleared on payment of duty. Nevertheless just because the appellants cleared all the molasses on payment of duty irrespective of its ultimate purpose, it does not mean that the duty which need not have been paid and they claimed as refund subsequently should be denied only on the ground that separate accounts were not maintained or some other means. In our opinion, what is required to be seen is whether duty was payable or not and if it was paid and the appellant is able to show that the quantity on which duty need not have been paid but has been paid to the satisfaction of the concerned refund sanctioning authority, the refund cannot be denied on any other ground. It is a settled law that no tax authority can collect taxes which is not due. On this basic principle, it is necessary for the lower authorities to consider the claim having regard to the correctness of the claim as well as whether the duty was payable in the first place or not. If appellant did not produce the worksheet, sufficient time could have been given to them for filing worksheet and after receipt, necessary action could have been taken. However, the learned counsel submits that they have given the worksheet and they have the details and the same was produced before the Commissioner (A), however we could not go into this aspect. Suffice it to say that the matter is required to be remanded to the original authority for fresh consideration of the issue keeping in mind that duty if not leviable need not be levied and refund if admissible, should be granted. At this stage, learned AR submits that a portion of the refund claim is time barred. Needless to say that provisions of Section of 11B would be applicable to this case and if the claim or portion of the claim is found to be beyond the time limit, the same can definitely be rejected.
(Order dictated and pronounced in open court) ANIL CHOUDHARY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3