Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S Sunshine Jewellers Ltd on 24 October, 2016
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. E/130/06-Mum (Arising out of Order-in-Appeal No. BR(483)141/MV/2005 dated 21.09.2005 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I.) For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, 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?
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Commissioner of Central Excise, Mumbai-V
Appellant
Vs.
M/s Sunshine Jewellers Ltd.
Respondent
Appearance:
Shri V.K. Agarwal, Addl. Commr. (A.R.)
for Appellant
Ms. Anjali Hirawat, Advocate
for Respondent
CORAM:
HONBLE SHRI RAMESH NAIR, MEMBER (JUDICIAL)
HONBLE SHRI C.J. MATHEW, MEMBER (TECHNICAL)
Date of Hearing: 24.10.2016
Date of Decision: 02.12.2016
ORDER NO.
Per: Ramesh Nair:
The fact of the case is that the respondent is engaged in the manufacture of imitation jewellery for which they are using Gold Potassium Cyanide (GPC) which are manufactured in their factory as an intermediate product. Prior to 31.03.2001 the imitation jewellery was not attracting duty and therefore the respondent liable for payment of duty on their intermediate product i.e. GPC. The demand proceeding of GPC by the department was carried out during which the respondent has deposited an amount of Rs. 1,53,91,800/- subsequently a Notification No. 51/2003-CEX (NT) dated 06.08.2003 was issued under Section 11C of Central Excise Act, 1944, by which the product GPC was exempted for captive use for retrospective effect and also entitled the respondent to claim the refund amount involved. Accordingly, the respondent filed a refund claim which was sanctioned by the Deputy Commissioner, Central Excise, Kandivali Division, Mumbai-V vide Order-in-Original No. 487/56/DCCEX/ KDN/04 dated 03.03.2004. Being aggrieved by the said Order-in-Original, the Revenue filed appeal before the Commissioner which came to be rejected and the Order-in-Original was upheld. Therefore the Revenue is before us.
2. Shri V.K. Agarwal, Learned Additional Commissioner (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal.
3. Ms. Anjali Hirawat, Learned Counsel for the respondent submits that the lower authorities have considered the merits as well as unjust enrichment and sanctioned refund claim as per the Notification No. 51/2003-CEX (NT) dated 06.08.2003 was issued under Section 11C of Central Excise Act, 1944. The respondent not liable to pay Excise duty on GPC therefore entire amount paid by them become refundable. As regards unjust enrichment, the original authority verified the facts and given the finding and there is no unjust enrichment in the case. Therefore, there is no substance in the appeal of the Revenue, which needs to be dismissed. She placed reliance on the following judgments:-
(i) CCE Vs. Sunshine Jewellers Ltd. 2014 (308) ELT 129 (T)
(ii) CC (A) Vs. PSI Data Systems 2009 (239) ELT 304 (T)
4. We have carefully considered the submissions made by both the sides. We reproduced the Learned Commissioner (Appeals) findings given in the impugned order:
05. I have carefully gone through the grounds of' appeal; written and oral submissions made by respondent and also the provisions of law relating to subject matter. The issue involved is whether the refund allowed is proper and in order or otherwise? The fact which is not on dispute that Commissioner, Central Excise, Mumbai-V vide his order-in-original No. V-Adj (Ch.28)15-3/2004 dated 13.2.2004 a duty demand of Rs. 98,17,723/- on GPC for the period from 01.04.99 to 31.03.2001 has been dropped. The said order-in-original still, finds field as nothing contrary is produced on record. Similarly, demand on the disputed goods for the period from 03/2001 to 03/2002 is set aside by Commissioner (Appeals), C.Ex vide Order-In-Appeal No. SDK (257,to 259)/257.to 259/M- V/2003 dated 27.01.04, which is still valid and finds field as nothing contrary is produced. In the case of State of Kerala Vs M.K. Kunhikannan Nambiar [1996 I SCC 435] Hon'ble Supreme Court had held that even a wrong order can become final and binding, if not appealed against. Even a void order does not become nonexistent. 'Void' means only illegal or invalid. An invalid or void order subsists till it is set aside by competent authority. In the case of M/s. Moti Laminates Vs. UOI [2002 (144) ELT 3 (SC 3 member bench), the Supreme Court had rejected SLP against order of High Court in respect of classification issue. Later, in some another unconnected appeal, the issue raised was identical and decision of classification of High Court was reversed. It was held that since decision of High Court has become final, that decision has to be obeyed. Even a wrong order does not become nullity. It would continue to bind the parties unless set aside it was held in the case of V S Charati Vs. Hussain Nhanu Jamadar (1999) I SCC 273. In the absence of any valid demand for the period 03/2001 no adjustment is possible specially when the demand on the disputed goods from 04/99 to 03/2001, stands dropped vide above order-in-original or set aside vide aforesaid Order-In-Appeal, which are still valid. Moreover, in the Order-In-Appeal dated 27.01.04 the Commissioner (Appeals) has decided the classification issue (in para-26) and the matter was send to DC/AC to determine the revised demand, if any, based on record to be produced by respondent before him. Thus, the issue of classification of final product is not under dispute and remand order relates to qualification of demand amount only. In the case of CCE Vs. M/s. Flack, (India) = 120, ELT 285 (SC), it was held that if order, of classification is not appealed against, it becomes final and it cannot be questioning the proceedings for refund. The same view was followed in M/s. Gokul Metalizers Vs. CCE [2001 (129) ELT 157 (CEGAT)]; M/s. Vayudoot Vs. CC [2001 (134) ELT 385 (CEGAT); M/s. Kopra Vs CCE [2002 (141) ELT 694 (CEGA T). Duty deposited should be refunded if matter remanded to adjudicating authority. If the appellate authority sets aside the order and remands the matter to adjudicating authority, the duty deposited pending appeal should be refunded. This is because once the order is set aside and matter remanded, there is no appeal pending and deposit pending appeal cannot be withheld, it was held in the case of M/s. Voltas Ltd. Vs. UOI [1999 (112) ELT 34 (Del HC DB) and followed in M/s. Krishna & Co. Vs. CCE [2000 (125) ELT 503 (CEGAT SMB). In any case irrespective of classification of final product, the disputed product is not chargeable to duty from 01.04.96 to' 17.08.02 (vide Notfn. No. 51/2003 CE (NT) dated 06.06.2003 and period from 01.04.96 to 28.02.2001 (vide Notification No. 84/2003 - CE (NT) dated 31.12.2003). In other words, the GPC is not chargeable to duty, upto February 2001 irrespective of determination and Classification of final product. There is also no dispute that GPC was used in the manufacture of imitation jewelIery or gold jewellery, as the case may be, hence the GPC becomes intermediate product. The, imitation jewellary becomes. liable to C.Ex. duty w.e.f. 01.03.2003 -in terms of' Notfn. No. 03/2001 dated 01.03.2001. Consequentially, the GPC i.e. intermediate product will get the benefit of Notfn. No. 67/95 - CE (NT) dated 01.03.95 and will be fully exempted. The fact which is not on dispute that refunded amount was, paid during investigations. The payment was made on 28.07.01 and' 03.08.01 Vide TR-6 Challan for-the-post clearances. In other words, the respondent had; paid: the refunded amount even before issue of show' cause notice' and amount was deposited and not paid as duty against any outstanding demand/C.Ex. duty. Section 11 B of CEA'44 is applicable with respect to C.Ex. duty only. The amount paid by the respondents is in the nature of deposit and hence, Section 11 B is not applicable. Hence, the question of limitation does not arise. The ratio of following Tribunal's orders will apply (a) M/s. Ambika Chemicals Vs.CCE [2002 (148) ELT 101 (T)]; (b) CCE Vs. M/s. Ravishankar Inds. Ltd. [2003 (106) ECR 76 (T)]; (c) M/s. Jayanta Glass Indus. Pvt. Ltd. Vs. CCE [2002' (50) RLT 98 (T)] ; (d) M/s. Parle International Ltd. Vs. UOL [2001 (127) ELT 329] ; (e) M/s. Suri Industries Vs. CCE [2001 (132) ELT 480 (T)] ; (f) M/s. Infar (India) Ltd. Vs. CENVAT credit, .New Delhi [2003 (l08) ECR 650 (T-LB)].
06. The. amount was paid on 28.07.2001 and 03.08.2001 towards the alleged demand on GPC during the period of April 1999 to March '2001. In other words, the amount was paid subsequent to removal of goods and therefore the 'question of collecting the same from the customer does not arise nor any contrary evidence is produced, The ratio of Hon'ble Tribunal's order in the case of M/s. Silwester Textiles Vs CCE [2003 (156) ELT 216 (T) is applicable in this case.. Moreover, the Section 11C(2) of CEA '44 provides that refund application should be filed within six month from the date of issue of Notification. The respondent has filed refund application within six months from issue of Section 11C notification dated 06.06.2003 and even otherwise also refund claim could be treated under Notfn. No. 84/03 - CE (NT) dated 31.12.03. Thus, there is no time bar in present refund claim if looked into above angle also. The Revenue argument that subject notification is not claimed by respondent and lower authority on own has allowed, is also not tanable. In the case M/s. Bharat Earth Movers Ltd. VS. CCE - [1991 (52) ELT 600 (CEGAT)] also in CCE Vs. M/s. ITC Ltd. - [1993 (67) ELT 852 (CEGAT)] it was held by Hon'ble Tribunal that it is not essential that exemption has to be claimed before clearance of goods. It is possible to avail exemption by making a refund claim later, even if classification or assessment is done at higher rate. In the case of M/s. Tas Engineering Vs. CCE [2001 (131) ELT 275 (CEGAT SMB)], it was held that if exemption was not claimed at the time of clearance, it can be claimed later by way of refund claim. Otherwise, Section 11B of Act would be confined only to cases where excess payment of duty is made purely by arithmetical mistake. In the case of M/s. Burroughs Welcome Vs. CCE [2001 (129) ELT 540 (CEGAT)], it was held that failure to claim benefit of exemption notification cannot debar importer from c1aiming it later. An exemption can be claimed later even if it is not declared at the time of declaration of classification, as there is no estoppel against law. M/s. Gujarat State Fertilizers Co. Ltd. Vs. CCE [1996 (13) RLT 219 (CEGAT 3 member bench]. The ratio of above orders is squarely applicable in the instant case. Regarding C.A. certificate, it reveals that this issue is irrelevant in view of above legal and factual position. In fact C.A. certificate is not at all required in the case, if amount deposited 'during investigation and the final outcome of the case results no duty demand; in view of detailed as discussed in the forgoing para-4 above. In view of forgoing facts and circumstances the Revenue appeal fails on all counts and order-in-original needs no interference.
07. The Revenue appeal is rejected and Order-in-Original is upheld. From the above findings we observe that the issue is clearly in favour of the respondent, that the Learned Commissioner (Appeals) while disposing of the department appeal considered the various judgment in the fact of the case and came to the conclusion that sanction order of the lower authority is proper and the Revenue appeal fails on all grounds. We are in incomplete agreement with the findings of the Commissioner (Appeals) which does not require any interference. We therefore uphold the impugned order and dismiss the Revenues appeal.
(Pronounced in Court on 02.12.2016) (C.J. Mathew) (Ramesh Nair) Member (Technical) Member (Judicial) Sp 2 APPEAL NO. E/130/06-Mum