Custom, Excise & Service Tax Tribunal
M/S. Atlas Capco (P) Ltd vs Cce Nasik on 17 February, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/3428/03 Mum
Arising out of Order-in-Appeal No. CEX.XI/JMJ/239/916/NSK/ APL/03 dated 21.08.03 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik.
For approval and signature:
Shri. M.V. Ravindran, Member (Judicial)
Shri. P.R. Chandrasekharan, 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 : No
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?
M/s. Atlas Capco (P) Ltd.
:
Appellant
Versus
CCE Nasik
Respondent
Appearance Shri M.P. Baxi, Advocate for appellant Shri N.A. Sayyad, JDR For Respondent CORAM:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical) Date of Hearing : 17.02.2011 Date of Decision : 17.02.2011 ORDER NO.
Per : M.V. Ravindran This appeal is directed against the order-in-appeal No. CEX.XI/JMJ/239/916/NSK/ APL/03 dated 21.08.03.
2. Relevant facts that arise for consideration are that the appellant is a 100% EOU. The said 100% EOU had been debonded. During debonding the lower authority had directed the appellant to deposit the amount of differential duty as calculated by them vide letter No. RF/CPI/DEBONDING/99 dated 4th October, 99. Consequent to such letter, the appellant had deposited the differential duty amount vide T.R.6 Challan No. 04/99-2000 dated 8th October, 99 under protest. Subsequently, the appellant felt that the amount which had been paid by them should not have been paid and sought refund of the same. The department issued a show-cause notice directing the appellant to show-cause why their claim should not be rejected. The adjudicating authority rejected the refund claim on the ground that the duty paid is not under protest and the amount paid is customs duty. Aggrieved by the order, the appellant preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) after following due process of law concurred with the adjudicating order and rejected the appeal.
3. The learned Counsel for the appellant submits that the amount which has been paid by them vide TR-6 challan is an amount of Central Excise duty, though wrongly paid as basic customs duty. It is his submission that the duty has been paid under protest which is indicated on the face of the challan. Regarding unjust enrichment, he would draw our attention to page No.52 of the appeal memo wherein Cost Accountants certificate has been annexed and produced before the lower authorities. He would submit that the amount of duty paid by them vide TR 6 challan dated 8th October, 99 was towards the finished goods out of which almost 70% were exported and they are not liable to pay any duty. He also submits that the learned Commissioner (Appeals) has not recorded any findings as regard to their plea of unjust enrichment and other pleas taken. He would also submit that the adjudicating authority has not recorded any findings regarding unjust enrichment and their contention is that all the amount which has been paid by them is towards central excise duty.
4. Learned DR on the other hand submits that the TR-6 challan dated 08.10.99 specifically indicates the payment of customs duty and surcharge on finished goods. It is his submission that for refund of such amount the appellant cannot file a refund claim in Form R which is used for refund of central excise duty and the amount paid being customs duty, the refund was correctly rejected due to erroneous application made by the appellant. It is submitted that TR-6 challan does have stamp of under protest. As regard unjust enrichment that the certificate issued by the Chartered Accountant is very vague and does not indicate what records were checked by the certifying Chartered Accountant given. He would rely on the decision of the Tribunal in the case of S.T.L. Exports Ltd. vs. Commissioner of Customs, Indore 2004 (168) ELT 272 (Tri. Del.), for the proposition that any amount paid under Customs Act and Central Excise Act are independent and they have to be dealt with independently. Hence rejection of the refund by the lower authorities is correct.
5. Heard both sides and perused the records.
6. On perusal of the records, we find that the letter 04.10.99 issued by the Superintendent of Central Excise, Range F, Nasik Division, who is the in-charge of the EOU of the appellant, clearly indicates that the appellant have to pay differential duty as central excise duty. Acting upon such letter the appellant paid the duty mentioned as indicated in TR-6 challan, as payment of customs duty and surcharge thereof. At the same time we also find that the covering letter to TR-6 challan dated 04.10.99 (annexed to appeal memoranda) clearly indicates and refers to the letter dated 04.10.99 written by the Superintendent. The above narration would lead to a conclusion that the appellant, discharged the duty vide TR-6 challan as central excise duty payable by them. It is not disputed that the TR-6 challan indicates that the duty has been paid under protest. Having recorded so, we find that the appellant has not been able to provide evidence regarding the non-passing of the incidence of the duty to their customers. The learned Counsel submits that the appellant had exported almost 70% of the goods as finished goods. We find no evidence has been produced by the learned Counsel to come to any conclusion. In the absence of evidence, we are unable to come to any conclusion. In view of the above, impugned order is set aside and the matter is remitted back to the adjudicating authority to reconsider the issue afresh for sanctioning the refund claim in the light of the directions and decided case laws on the issue. The adjudicating authority will follow the principle of natural justice before passing an order. Appeal is allowed by way of remand.
(Dictated in open Court) (P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk 5