Custom, Excise & Service Tax Tribunal
Himachal Futuristic Communications ... vs Cce & St, Chandigarh-Ii on 23 August, 2017
?CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 DIVISION BENCH COURT NO.I Appeal No.E/359/2009-EX (DB) (Arising out of OIA No.04/CE/CHD/09 dt. 20.1.2009 passed by the CCE(Appeals), Chandigarh) Date of Hearing/Decision:23.08.2017 Himachal Futuristic Communications Ltd. Appellant Versus CCE & ST, Chandigarh-II Respondent
Appearance Shri Surjeet Bhadu, Advocate for the appellant Shri Atul Handa, AR for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) FINAL ORDER NO. 61673/2017 Per Archana Wadhwa:
After hearing both sides, we find that the refund arose to the assessee, as result of passing of the order of the Commissioner (Appeals) in their favour. When the appellant approached the Revenue for refund of duty, the same was sanctioned by the Assistant Commissioner but a part of the amount was adjusted against the outstanding amount of interest which according to the Revenue, the appellant is liable to pay in respect of supplementary invoices. raised by them.
2. Being aggrieved with the said order of the Assistant Commissioner, the appellant filed an appeal before the Commissioner (Appeals) who rejected the same. Hence the present appeal.
3. The contention of the learned Advocate is that there are neither any interest proceedings initiated against the appellant nor is there any confirmation of interest. As such, the adjustment of refund claim against the interest amount is an ex-parte decision of the adjudicating authority himself, deciding that the interest liability is pending against the assessee. In fact, learned Advocate submits that years back there was a letter issued by the Revenue as regards the interest amount which they disputed and clarified that the same is not required to be paid by them. Inspite of that, the Assistant Commissioner has single handed decided the interest liability of the assessee, without there being proper adjudication proceedings and adjusted the amount. Learned Advocate draws our attention to the Tribunals decisions in the case of CCE, Ahmedabad vs. Bonus Plastics Pvt.Ltd.-2008 (230) ELT 165 (Tri.-Ahmd.) and in the case of KEC International Ltd. vs. CCE, Bhopal-2014 (310) ELT 615 (Tri.-Del.) wherein in similar circumstances, it was observed that interest is also required to be confirmed by the proper adjudication process and in the absence of any confirmation of demand of interest, the refund arising to the assessee cannot be adjusted. He also draws our attention to the decision of the Honble Delhi High Court in the case of Hindustan Insecticides Ltd. vs. CCE, LTU -2013 (297) ELT 332 (Del.) laying down that the interest demand can be raised within a period of limitation prescribed under section 11B. As such, it is seen from such decision, for confirmation of interest, a show cause notice has to be issued that too within limitation period.
4. He further submits that a part of refund amount stands adjusted against confirmed demand, which demand has now been set aside by the Tribunal vide Final Order No.ST/355/2011-CU (DB) dated 10.8.2011. As such, the adjustment against demand which stands dropped by the higher authority is no longer justifiable.
5. At this stage, learned Advocate submits that the appellant is not contesting the adjustment of the refund of Rs.5,000/- adjusted against the penalty imposed by an earlier order.
6. Learned AR, appearing for the Revenue, submits that there is no requirement of issuance of any show cause notice for the purpose of confirmation of interest and relied upon various Tribunals orders as in the case of Emco Limited vs. CCE, Mumbai-2011 (272) ELT 136 (Tri.-Mumbai) and in the case of Commissioner of Trade Tax, Lucknow vs. Kanhai Ram Thekedar-2005 (185) ELT 3 (SC).
7. We are of the view that the impugned order adjusting the sanctioned refund claim is required to be set aside and the matter is required to be remanded for verification of facts as well as the fact as to whether any interest proceedings stands initiated by the adjudicating authority pending against the assessee. For deciding the above issue, the adjudicating authority would take into account the relevant law declared by the various courts. He is also directed to re-decide the quantum of refund adjusted against confirmed demand, which according to the appellant, stands set aside by the Tribunal.
8. The appeals is allowed of by way of remand.
(dictated & pronounced in the open court)
(Devender Singh) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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