Custom, Excise & Service Tax Tribunal
Sterlite Industries (I) Ltd vs Commissioner Of Central Excise, ... on 23 March, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. E/2953/03 (Arising out of Order-in-Appeal No. RK/17/AUR/2003 dated 30.6.2003 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur) For approval and signature: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. S.K. Gaule, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Sterlite Industries (I) Ltd. Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent Appearance: Shri Saket Patwari, Chartered Accountant, for appellant Shri K. Lal, Authorised Representative (SDR), for respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. S.K. Gaule, Member (Technical) Date of Hearing: 23.3.2010 Date of Decision: 23.3.2010 ORDER NO................................. Per: P.G. Chacko, Member (J),
This appeal pertains to three refund claims filed by the appellant, a claim dated 17.7.1996 for Rs.4,71,355/-, another claim dated 30.9.1996 for Rs.2,46,936/- and a third one dated 24.10.1996 for Rs.4,52,160/-. All the three refund claims were rejected by the original authority on the ground of non-production of original documents. In the appeal filed by the assessee against the Assistant Commissioner's order, the learned Commissioner (Appeals) found that the party had not produced the requisite documents and also had not adduced evidence against the bar of unjust enrichment. In the result, all the refund claims were rejected.
2. The learned consultant for the appellant submits that the documents requisitioned by the lower authorities are either not relevant to the refund claims or not available with the claimant. It is also pointed out that, though in the relevant show-cause notice pertaining to the claim for refund of Rs.4,52,160/-, the department only proposed to reject the claim on the ground of unjust enrichment, the original authority in its order did not advert to this aspect. That authority rejected all the three refund claims on the ground of non-production of original documents. The learned SDR has contested the submission that the required documents are irrelevant to the refund claims. In this connection, he has referred to a specimen refund claim. We find that each of the claims was accompanied by only xerox copies of documents. In the covering letter for the refund claim, the party undertook to produce the original documents as and when required. Nevertheless, they failed to produce the documents before the original authority or even before the first appellate authority. These documents are not even available on record before us. Therefore, insofar as the refund claims dated 17.7.1996 and 30.9.1996 are concerned, they are only liable to be rejected on the ground of non-production of original documents. Though it has been argued that these documents are not relevant, this plea remains unsubstantiated. An assessee claiming refund of the duty paid by him should, in the first instance, establish the payment of duty, for which he should produce the relevant original documents. For want of these documents, the aforesaid two refund claims are liable to be rejected. However, the third refund claim dated 24.10.1996 for an amount of Rs.4,52,160/- stands on a different footing. In the relevant show-cause notice, the proposal was to reject this claim on the ground that the incidence of duty had been passed on to the buyer. The show-cause notice called upon the party to adduce evidence against the bar of unjust enrichment. But, in adjudication of the show-cause notice, the original authority overlooked this aspect. In the circumstances, the original authority will be required to deal with the refund claim afresh in terms of the relevant show-cause notice and in accordance with law. Needless to say that the authority should give the party a reasonable opportunity of adducing evidence against the bar of unjust enrichment and also of being personally heard.
3. In the result, this appeal is dismissed insofar as the refund claims dated 17.7.1996 and 30.9.1996 are concerned and is allowed by way of remand in respect of the remaining refund claim.
(Pronounced in Court) (S.K. Gaule) Member (Technical) (P.G. Chacko) Member (Judicial) tvu 1 4