Custom, Excise & Service Tax Tribunal
Godrej Industries Ltd vs Commissioner Of Central Excise, Mumbai ... on 29 June, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. E/997/08
(Arising out Order-in-Appeal No. SRK/439/M-II/2008 dated 10.7.08 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
For approval and signature:
Honble Mr. P.G. Chacko, 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 Lordships wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
Godrej Industries Ltd.
Appellant
Vs.
Commissioner of Central Excise, Mumbai II
Respondent
Appearance:
Shri R.J. Parekh, Advocate for the appellant Shri N.A. Sayeed, JDR for the respondent CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Date of hearing : 29.6.2009 Date of decision : 29.6.2009 O R D E R No:..
The appellant had imported 278.98 MT of crude palm stearine oil and filed a bill of entry and claimed its clearance at concessional rate of customs duty in terms of notification no. 36/96 Cus (NT) dated 23.7.96 by filing two bills of entry in the month of January 2006. Both the consignments were cleared accordingly. Subsequently, the department found that about 6.6MT of the above goods were shown to be short and therefore the assessee was liable to pay differential duty of Rs.64,294/- on this quantity of the goods. The assessee paid this differential duty inadvertently twice. Subsequently, they claimed refund of Rs.64,294/- which was sanctioned by the Asst. Commissioner of Central Excise, Vikhroli Divn., Mumbai II. The department having found that the Asst. Commissioner of Central Excise had no jurisdiction to consider any claim of refund for customs duty, reviewed the Asst. Commissioners order and accordingly filed an appeal with the Commissioner (Appeals). Simultaneously, the department also issued a demand notice to the assessee on the ground of erroneous refund. This notice was also issued by the Asst. Commissioner of Central Excise. While this notice was under adjudication, the Commissioner (Appeals) allowed the departments appeal by setting the refund sanctioning order of the Asst. Commissioner. The order passed by the Commissioner (Appeals) was then taken in appeal to this Tribunal by the assessee (appeal no. E/2/08) and the same was disposed of by order no. A/765/08/SMB/CV dated 8.12.08. The operative part of the Tribunals order reads as under:-
I find that the refund sanctioned has been questioned solely on the ground that the Asst. Commissioner has sanctioned the amount under section 11B of the Central Excise Act where as the duty relates to Customs. I agree that the Asst. Commissioner is competent to sanction both refund of customs and central Excise duty, as being in charge of units receiving imported goods, he was the Asst. Commissioner both for Customs and Central Excise. In view of the same, the Asst. Commissioner is competent to grant the sanction and therefore the Commissioner (Appeals) should not have set aside the refund order but should have directed the Asst. Commissioner to sanction it under the Customs Act. I therefore set aside the order of the Commissioner (Appeals) and direct the Asst. Commissioner that refund amount should be sanctioned by him under provision of Customs Act by treating the application under Customs Act.
2. While so, the demand notice was adjudicated upon by the Asst. Commissioner of Central Excise, Vikhroli, Mumbai II who ordered recovery of Central Excise duty of Rs. 64,294/- under Section 11A of the Central Excise Act from the assessee on the ground of erroneous refund and also ordered for levy of interest under Section 11AB of the Act. This order of the Asst. Commissioner was also taken in appeal by the assessee, but that appeal was rejected by the Commissioner (Appeals). The refund part of the order of the Commissioner (Appeals) is reproduced below:-
I have carefully gone through the records of the case and submissions made before me during the course of personal hearing. The departments appeal field against the order-in-original whereby the refund was decided by me vide order-in-appeal no. SRK/374/MII/2007 dated 03.10.2007 and I reiterate here that the amount which is the subject matter of dispute, had been paid purportedly as duty. Therefore, the only way it could be given back to the appellants was by refund under the Act under which it was paid. As the amount was paid as duty of customs, only an officer empowered to refund the amount under Section 27 of the Customs Act, 1962 could have sanctioned it. Accordingly, the impugned order ordering recovering of the erroneously refunded to the appellants needs no interference. The present appeal is directed against the above order of the Commissioner (Appeals).
3. After hearing the ld. counsel for the appellant and the ld. DR for the respondent, I find that the impugned order is infructuous inasmuch as the issue relating to refundability of Rs.64,294/- to the assessee has already been remanded to the Asst. Commissioner by this Tribunal vide order no. A/765/08 dated 8.12.08. Order-in-appeal no. 374/07 dated 3.10.07 on the basis on which, in the impugned order, the Commissioner (Appeals) upheld the Asst. Commissioners order for recovery of Rs.64,294/- from the assessee on the ground of erroneous refund, was set aside by this Tribunal. Therefore, after setting aside the impugned order as well as the order passed by the original authority in adjudication of the demand notice, I allow this appeal by way of remand directing that the question whether the amount of Rs.64,294/- is liable to be recovered from the assessee on the ground of erroneous refund shall be deal with by the same Asst. Commissioner who is bound by the Tribunals direction contained in order no. A/765/08 dated 8.12.08. This order is being passed, having regard to the fact that the above order of the Tribunal has been accepted by both sides.
(Dictated in Court) (P.G. Chacko) Member (Judicial) //SR 5