Custom, Excise & Service Tax Tribunal
M/S. Srd Nutrients (P) Ltd vs Commissioner Of Central Excise, ... on 16 December, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.Ex.Ap.306/06
(Arising out of Order-in-Original No.V-2(69)/Law/H.Q.Dib/04/295 dated 10.04.2006 passed by the Commissioner of Central Excise, Dibrugarh.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
HONBLE SHRI M.VEERAIYAN, MEMBER(TECHNICAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. SRD Nutrients (P) Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Dibrugarh
Respondent (s)
Appearance:
Shri Ravi Raghavan, Advocate for the Appellant (s) Shri A.K.Sharma, Authorised Representative(JDR) for the Respondent (s) CORAM:
Honble Shri S.S.Kang, Vice President Honble Shri M.Veeraiyan, Member(Technical) Date of Hearing:- 16.12.2010 Date of Pronouncement :- 16.12.2010 ORDER NO.
Per Shri M. Veeraiyan.
1. This is an Appeal against the order of the Commissioner No. V-2(69)/Law/H.Q.Dib/04/295 dated 10.04.2006.
2. Heard both sides extensively.
3. The relevant facts in brief are that the Appellants were a manufacturer of malted milk food and were availing the exemption under Notification No.33/99 dated 08.07.1999 and accordingly received refund of entire duty paid by them through PLA during this period vide orders dated 07.10.2002, 08.11.2002, 09.12.2002 and 06.01.203. Notification No.33/99 dated 08.07.1999 was amended by Notification No.61/2002 dated 23.12.2002 which placed an additional restriction on the quantum of refund available to the assesses availing Notification No.33/99 by restricting the refund of amount paid in cash not to exceed the difference between the amount paid in cash and credit attributable to inputs contained in the finished goods cleared during the month. This amending Notification has been retrospectively validated by Finance Act of 2003 passed in May 2003. Admittedly a sum of Rs.35,31,810/- has been paid in excess during the period 11.09.2002 to 22.12.2002 in view of the retrospective amendment to the Notification No.33/99 dated 08.07.1999. The Department issued a letter dated 30.05.2003 informing the Appellants that they are required to Rs.35,31,810/- paid in excess during the relevant period. The Appellants replied to the said letter vide letter dated 13.06.2003 claiming that the excess refunded amount has been duly adjusted by them voluntarily while preferring the refund claim applicable for the month of January 2003 filed on 03.02.2003 and settled by the Department on 06.02.2003. However, without accepting such a claim Commissioner has passed the impugned order directing the Appellants to pay the amount of Rs.35,31,810/- and hence the party is in Appeal.
4. Learned Advocate fairly concedes that there was excess payment of Rs.35,31,810/- during the relevant period, in view of the retrospective amendment to Notification No.33/99 dated 08.07.1999. It is his contention that vide letter dated 25.12.2002 informed the Assistant Commissioner that they proposed to make the adjustment during the month of January, 2003 and subsequently vide letter dated 31.01.2003 informed the Assistant Commissioner that they have complied with the said notification. Drawing our attention to an work-sheet, he submits that an amount of Rs.7,28,034/- was paid in excess during September, 2002, a sum of Rs.17,19,100/- was paid in excess during October, 2002, a sum of Rs.20,38,702/- was paid in excess during November 2002 and there was no excess payment during December, 2002 and January, 2002 and in fact the excess payment made in earlier months were adjusted during those two months. He relies on the Boards Circular No.B-3/5/2003-TRU dated 30.04.2003 para 4.1 and submits that for the purpose of adjustment of cash refund paid in excess, the entire period should be taken together. He submits that in the refund claim for the month of January, 2003, they claimed only a sum of Rs.31,73,676/- even though they were entitled to claim a refund of Rs.66,97,056/- and thus adjusted the entire excess refund claimed by them during the earlier months. Therefore the demand by the impugned order is not sustainable.
5. Learned J.D.R. reiterates the findings and reasoning of the Commissioner.
6. We have carefully considered the submissions made from both the sides and perused the records. Notification No.33/99 dated 08.07.1999 has provided incentive to industries set up in North-East region. Initially the entire amount of duty paid by the assesses eligible for the said Notification were permitted to take refund of entire duty paid in cash/through PLA. Subsequently restriction came to be imposed by amendment dated 61/02 dated 23.12.2002 and the said amendment has been given retrospective effect from 08.07.1999. There is no dispute before us that there was an excess amount of Rs.35,31,810/- was paid in excess during the relevant period to the Appellant. The claim of the Appellant is that they have adjusted the excess payment voluntarily in January, 2003 refund claim. On a perusal of the refund claim dated 03.02.2003 filed for the month of January, 2003, it is noticed that the Appellants claim before the sanctioning authority that during the month of January, 2003 they have paid totally a sum of Rs.31,73,676/- through PLA and Rs.98,38,935/- through CENVAT Credit and claimed a sum of Rs.31,73,676/- only. In the refund claim, there is no request for any adjustment of amount paid to them in excess during the period September to December, 2002. The claim amount was only Rs.31,73,676/- and it is not in dispute that the entire amount as claimed by them stands sanctioned. We are not able to appreciate that the sanctioning authority will be in a position to sanction amount in excess of what has been claimed by the Appellant. Merely because certain amounts were lying in the CENVAT Account which could have been used by them otherwise for paying the duty amount, it cannot be presumed that an excess amount has been sanctioned as refund and adjusted. Even though the Appellants give a letter dated 25.12.2002 and 31.01.2003, in the refund claim filed by them on 03.02.2003 there is no reference to such communications. The adjustments sought for by the Appellants will amount to re-casting the refund claim filed by the Appellants as it is for a higher amount and showing as if part of the amount stands adjusted towards the dues for the period September, 2002 to December, 2002. This type of adjustment of the refund claim filed and settled by the Appellants is neither desirable nor permissible.
7. In view of the above we do not find any infirmity in the order of the Commissioner. Appeal is therefore rejected.
(Pronounced and dictated in the open court.) Sd/ sd/ (S.S.KANG) (M.VEERAIYAN) VICE PRESIDENT MEMBER(TECHNICAL) sm 5 Appeal No.Ex.Ap.306/06