Custom, Excise & Service Tax Tribunal
Indian Oil Corporation Ltd vs Vadodara-I on 7 February, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
REGIONAL BENCH - COURT NO. 03
EXCISE Appeal No. 11133 of 2013-DB
[Arising out of Order-in-Original/Appeal No 10-CEX-IOCL-COMMR-I-2013 dated 07.02.2013
passed by Commissioner of Central Excise, Customs and Service Tax-VADODARA-I]
Indian Oil Corporation Ltd ...Appellant
Gujarat Refinery,
P.O. : Jawaharnagar,
VADODARA
GUJARAT-391320
VERSUS
C.C.E. & S.T.-Vadodara-i ...Respondent
1st Floor...Central Excise Building, Race Course Circle, Vadodara, Gujarat-390007 APPEARANCE:
Shri Willingdon Christian, Advocate for the Appellant Shri. Vijay G. Iyengar, Superintendent (Authorized Representative) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU FINAL ORDER NO.A / 10221 /2023 DATE OF HEARING:17.01.2023 DATE OF DECISION: 07.02.2023 RAMESH NAIR The brief facts of the case are that as asked by the department to the appellant to pay the differential duty, the appellant has paid the differential duty for the period from June, 1993 to August, 1993 on Residual Crude Oil on the ground that the appellant was required to receive certificates of re- warehousing within 90 days as stipulated in Rule 156B (1) of Central Excise Rules, 1944, but they failed. Subsequently the two Show Cause Notices dated 20.10.1993 and 13.12.1993 were issued which were confirmed by order in original dated 30.11.1995 on the ground that the appellant failed to state 2 E/11133/2013 anything about the facts of establishing procurement of the consignment in the hands of the proper consignee. The said order dated 20.10.1993, was challenged before the Hon'ble Tribunal but the appeal was dismissed on the ground that there is no concurrence of the committee of disputes for pursuing this appeal. Thereafter, the appellant paid up the duty of Rs. 1,13,52,313/-, and filed a refund claim on the ground of they had submitted all the AR3As to prove supply of Residual Crude Oil to the prescribed consignees. The above refund claim came to be rejected by the Assistant Commissioner vide SCN dated 13.01.1997, and the corresponding order in original dated 16.04.1997, but on appeal vide order in appeal dated 30.10.1998, it was remanded to the Adjudicating Authority to pass order after verifying the documents, certificates of re-warehousing. On remand proceedings the Learned Deputy Commissioner passed order in original dated 10.07.2000, contending inter alia that order dated 30.11.1995, had become final and the appellant is not eligible for refund on appeal against the aforesaid order dated 10.07.2000, the Commissioner(Appeals) passed order dated 15.02.2001, and upheld the verdict that the earlier order in original dated 30.11.1995 has became final and no refund is grantable. The appellant's appeal before the tribunal came to be rejected on the ground that the order dated 30.11.1995, had attained finality. The appellant then approached the High Court of Gujarat vide SCA dated 14.06.2006. The Hon'ble high Court vide it's order dated 26.09.2008, was pleased to set aside the CESTAT's order and sanction the refund with interest .In compliance with the aforesaid order dated 26.09.2008, of the Hon'ble High Court of Gujarat, The appellant was granted refund of Rs.
1,21,38,304/- including interest of Rs. 9,44,567/-. However, thereafter a SCN No. V.Ch.27 (4) Dem/Commr-I/09 dated 11.11.2009, was issued seeking recovery of refund amount as if it was erroneously granted on the ground that the above order of the High Court of Gujarat was then challenged by the revenue before the Hon'ble Supreme court in SLP No. 18988 of 2009, which 3 E/11133/2013 came to be decided by its order dated 02.08.2010, requiring the appellant to produce all the relevant AR3As showing the proof of receipt of goods by the consignees in terms of the Notification No. 75/84-CE read with Rule 156B(1) of the Central Excise Act, 2002. The Adjudicating Authority has rejected the refund claim partially by allowing refund of Rs. 40,68,278/- and confirmed recovery of the balance amount of refund of Rs. 80,70,026/-, against the order of the adjudicating authority rejected the partial claim, the appellant filed the present appeal.
2. Shri Willingdon Christian, Learned Counsel submits that the appellant along with refund application dated 05.11.1996, submitted all the AR3As, therefore, there was no reason to reject the claim. For this he invited our attention to the refund application dated 5.11.1996, he submits that subsequently the appellant further reiterated the submission of all the AR3As vide there letter No. JRF/ A-17/ SCN-140/166 dated 20.04.2011. Therefore, there was no reason to reject the refund claim of Rs. 80,70,026/-. Without prejudice to his above submission, he further submits that when remission of duty for special industrial purpose, exempts the consignee, who is L-6 license holder, the concessional rate of duty cannot be denied to the manufacturer because of non-endorsement in AR3As form of actual receipt of material at beneficiary's end. In such a case, the duty liability falls on the beneficiary consignee and not on manufacturer from whom the concessional rated material was obtained by the consignee, i.e licence holder. In this context, he placed reliance on the following judgments:
1992 (62) ELT 807 (T ) CCE Vs. Fenner India limited 1999 (110) ELT 960 (T) I.B.P co. Ltd. Vs. CCE 4 E/11133/2013
3. Shri Vijay G. Iyengar, Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order.
4. We have carefully considered the submissions made by both the sides and perused the records. We find that the Adjudicating Authority rejected the part claim of Rs. 80,70,026/- by demanding the same and demand of refund of Rs. 40,68,278/- was allowed. On perusal of the impugned order, we find that the main reason for demand of the refund is given below:
"18. As regards remaining 129 AR3As involving duty demand of Rs. 71,25,459/-, I find that M/s. IOC Ltd. Has utterly failed to follow the procedure prescribed under Rule 173N (6) of the Central Excise Rules, 1944 in respect of these AR3As and as such I hold that they are not entitled for any benefit with regard to 129 AR3As involving duty demand of Rs.
71,25,459/- on account of non-fulfillment of stipulated conditions as laid down in Notification as well as Rules made there under."
From the above finding it is absolutely unclear that what is a lapse on the part of the appellant for rejecting the refund claim by demanding the sanction refund. We find that the appellant has clearly mentioned in their refund application that the appellant have submitted all the AR3As, for the ready reference, we scan relevant page of the refund claim: 5
E/11133/2013 From the above refund application, it is clear that the appellant had submitted all the 144 AR3As. Therefore, there seems to be no reason on the partly refund is denied out of the total AR3As. Moreover, the appellant much before the passing of the adjudication order vide their letter dated 20.04.2011, brought to the knowledge of the commissioner referring their refund application that 6 E/11133/2013 they had submitted all 144 AR3As along with the refund application. The said letter is scanned below:
From the above letter also it is clear that there is no dispute that the appellant had submitted all 144 AR3As. Therefore, we do not find any lapse on part of 7 E/11133/2013 the appellant. It appears from the order that the cognizance of letter dated 20.04.2011 was not taken by the Adjudicating Authority. Therefore, we are of the view that the matter needs to be re considered taking into consideration that the appellant have submitted all the 144 AR3As.
5. The impugned order is set aside, appeal is allowed by way of remand to the adjudicating authority.
(Pronounced in the open Court on 07.02.2023) RAMESH NAIR MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) Palak