Custom, Excise & Service Tax Tribunal
Cce&C, Visakhapatnam-I vs M/S. Ramanaiah Constructions on 17 November, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No.E/580/2009 (Arising out of Order-in-Appeal No.06/2009(V-I)(D)CE dt. 27/02/2009 passed by CCE&C(Appeals), Visakhapatnam) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member(Judicial) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? CCE&C, Visakhapatnam-I ..Appellant(s) Vs. M/s. Ramanaiah Constructions ..Respondent(s)
Appearance Shri P.S. Reddy, Asst. Commissioner(AR) for the appellant.
Shri A.S.K. Swetha, Advocate for the respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Date of Hearing:17/11/2016 Date of decision:17/11/2016 FINAL ORDER No.31193/2016 [Order per: Sulekha Beevi, C.S.] The above appeal is filed by the Department challenging the order passed by the Commissioner(Appeals) who upheld the order of the original authority sanctioning the refund.
2. The respondents had filed a refund claim for the refund of duty of Rs.8,62,353/- paid by them for the supply of bitumen procured from Hindustan Petroleum Corporation Ltd. (HPCL in short). The said refund claim was originally rejected by the refund sanctioning authority for the reason that the respondent had not furnished Bitumen Requirement Certificate along with refund claim. The respondents filed appeal before the Commissioner(Appeals) vide order dated 04/03/2008 who remanded the matter to the refund sanctioning authority to consider the question afresh and to give an opportunity to furnish the required certificate. Against this order, the Department approached CESTAT by filing appeal No.E/439/2008 and by Final Order No.27110/2013 dt. 12/12/2013, the Tribunal dismissed the appeal filed by the Department.
3. Meanwhile, pursuant to remand order, in de novo adjudication, the respondent produced the certificate and the refund sanctioning authority sanctioned the refund of Rs.6,77,323/- vide order dt. 16/06/2008. Aggrieved, the Department filed appeal before the Commissioner(Appeals) who vide order impugned herein, dismissed the appeal. It is now argued by the Department represented by learned AR Shri P.S. Reddy that the Commissioner(Appeals) ought not to have dismissed the appeal filed by the Department but ought to have remanded the matter to the refund sanctioning authority to verify whether the certificate is proper and whether the refund is hit by unjust enrichment.
4. On behalf of the respondent, learned counsel Ms. A.S.K. Swetha explained the facts of the case and submitted that the respondent has been sanctioned the refund and the Department is in appeal contending that the refund sanctioning authority has to verify the contract and related documents as to whether the incidence of duty has been borne by the respondents or not. She submitted that the refund sanctioning authority in de novo adjudication had verified all documents and found that refund is filed within time and that by no stretch of imagination the excise duty portion will be reimbursed by the Government of Andhra Pradesh, when the government itself is giving procurement certificate for obtaining Bitumen duty free. She submits that the bitumen procured duty free was used for construction of roads and that there is no question of passing on.
5. On perusal of the grounds of appeal, the main contention put forward by Department is that the Commissioner(Appeals) ought to have remanded the matter to the adjudicating authority to verify the certificate as well as the issue of unjust enrichment. I cannot agree with the submissions made by the learned AR for the reason that the Department itself in many appeals filed before the Tribunal has contended that the Commissioner(Appeals) has no power to remand. Therefore, I hold that there is no merit in the appeal filed by the Department. It is also to be noted the fact that the appeal filed by the Department in the earlier round of litigation No.E/439/2008 has been dismissed by the Tribunal vide Final order dt. 12/12/2013. In view thereof, the appeal is dismissed.
(Pronounced and dictated in open court) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Raja.
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