Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise & S.T vs Dempo Shipbuilding & Engineering Pvt. ... on 23 February, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Application No. E/ROM/92004/16 Appeal No. E/614/07 (Arising out of Order-in-Appeal No. GOA/CEX/SB/130/2006 dated 28.12.2006 passed by Commissioner of Customs & Central Excise (Appeals), Goa) For approval and signature: Honble Mr. M.V. Ravindran, 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?
Commissioner of Central Excise & S.T Goa (Application No. E/ROM/92004/16) Appellant Vs. Dempo Shipbuilding & Engineering Pvt. Ltd.
Respondent ..
Dempo Shipbuilding & Engineering Pvt. Ltd. Appellant (Appeal No. E/614/07) v.
Commissioner of Central Excise & S.T Respondent Goa Appearance: Shri R.K. Maji, Asst. Commr (AR) for appellant Shri S.B. Gabhawalla, C.A. for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 23.02.2016 Date of Decision: 23.02.2016 ORDER NO Per: M.V. Ravindran
This application for Rectification of Mistake is filed by Revenue for rectifying an error that has crept in our final order No.A/3592-3593/15/EB dated 20.10.2015.
2. Heard both sides and perused the records.
3. We find that the Revenue seeks to rectify the mistake of not recording of finding in the final order dated 20.10.2015 in respect of Appeal No. E/614/2007 which was disposed of. It is the submission of the learned D.R. that in the said appeal, the issue of unjust enrichment has not decided nor there is any finding.
4. After hearing the learned C.A. appearing for the respondent M/s. Dempo Shipbuilding & Engg. P. Ltd. we find that there is an error in our final order dated 20.10.2015. We have disposed of two appeals and in the said final order the Bench has recorded detailed findings only in respect of Appeal No. E/3291/98-Mum and has not recorded any findings on the appeal filed by the assessee in Appeal No. E/614/2007. To that extent we agree that there is an error in our final order dated 20.10.2015 and allow the application for Rectification of Mistake and take up the appeal for disposal by this order.
5. Appeal No. E/614/07 is filed against the Order-in-Appeal No. GOA/CEX/SB/130/2006 dated 28.12.2006. By the said impugned order the first appellate authority has rejected the appeal of the assessee on the ground that they were not able to bring on record that the amount of refund claimed by the assessee was not passed on to their customers.
6. On perusal of the records, we find that in this appeal, the appellant had filed a refund claim of an amount paid under mistake of law. The adjudicating authority as well as the first appellate authority have recorded the findings that the assessee is unable to produce any evidence that incidence of duty has not been passed on to their customers M/s Afcons Infrastructure Ltd. hence they rejected the refund claim. We find that the refund claim is filed by assessee on the amount paid by them on the product Pontoon with Spuds. The assessee was of the view that this product is not liable to any duty while Revenues case was the product is liable to 20% basic excise duty. During the pendency of the classification dispute the assessee discharged the duty liability under protest. We find from the records and from the submission of the learned C.A. that the appellants client Afcons Infrastructure Ltd., have also filed an application for the refund of the said amount with the departmental authorities and their appeal is pending before this Tribunal. In our considered view, the fact that M/s. Afcons Infrastructure Ltd. has filed an application for refund of amount involved is itself an evidence against the assessee. Filing of refund claim by Afcons Infrastructure Ltd. would mean that they paid duty amount to assessee M/s. Dempo Shipbuilding & Engg. P. Ltd. In view of the foregoing, we hold that the impugned order Goa/CEX/SB/130/2006 dated 28.12.2006 is correct, legal and does not suffer from any infirmity.
7. The appeal No. E/614/07 is rejected.
(Dictated in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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1 4 Application No. E/ROM/92004/16 Appeal No. E/614/07