Customs, Excise and Gold Tribunal - Tamil Nadu
M/S. Lakshmi Machine Works Ltd vs Cce, Madras on 8 May, 2001
ORDER
Shri S.L. Peeran, (J)
1. All these 32 appeals have been filed by the appellants company against rejection of the refund claim by the original authority and also by the Commissioner (Appeals). Appeal No.E/149/97 and E/599 to 609/97 arise from the common Order-in-Appeal No.590, 591, 592/96 dated 20.8.96 in which the Commissioner (Appeals) in para 4 to 8 has recorded as follows:-
4. I have given my careful consideration to all the submissions of the appellants and I have also seen the Assistant Commissioner's orders. The simple issue here is whether the Assistant Commissioner was right in rejecting the refund claims on account of additional sales tax / turnover tax or his orders require my intervention.
5. The appellants have argued in the grounds of appeal that they are required to make payments by way of additional sales tax and turnover tax in respect of the textile machinery and parts manufactured by them and that the assessees cannot collect additional sales tax as per section 2(2) of the Tamilnadu Additional sales Tax, Act 1970 and since these taxes if paid in accordance with the relevant statute are deductible from the assessable value even if paid periodically, the refund claims ought to have been sanctioned. They have cited interalia the judgement Bombay Tyre International case reported in 1984 (17) ELT 329 (SC) and Hindustan Gas Industries Ltd., Vs Collector (1992) (59) ELT 306 (T).
6. I find from the impugned orders that the Assistant Commissioner, has discussed the relevant provisions and then observed that the appellants have not produced documentary evidence as required under section 11 B (1). From the photostat copies of FORM A-7 prescribed under rule 7(3) of Tamilnadu Additional Sales Tax Rules, 1970 produced by the appellants in support of having paid the above tax, the Assistant Commissioner observed that particulars of challan number and date of payment were found to be blank showing that the amount has not been paid so far. Further, no break up was available for the appellant unit working at Porlanadckenpalayam as district from their other unit from the return filed by the appellant. In view of the above, the Assistant Commissioner concluded that the appellants were not eligible for the aforesaid refund claims.
7. I find force in the above observations of the Assistant Commissioner, Though the appellants have stated that they are entitled to deductions from the assessable value in respect of additional sales tax / turnover tax as per the cited case laws, the issue here is not one of deduction from assessable value but that of refund of Central Excise duty already paid on this account. When any refund claim has to be considered, the Assistant Commissioner has to consider the same as per section 11 B of the Act. It is therefore for the assessee to establish his claim with documentary evidence that the tax burden has not been passed on to the buyer, after section 11 B was amended with effect from 20th September' 91. The validity of the above provisions has also been confirmed by the Apex Court in the case of Jain Spinners (1992) (61) ELT 321 (SC) followed by I T C case vide 1993(67) ELT 3 (SC). In view of the above and in the absence of any evidence to establish the fact that the dutyburden has not been passed on to any one, the Assistant Commissioner, has rightly held that the appellants are not entitled to the refund. Where the appellants have shown proof that they have actually paid such tax, the refund is liable to be sanctioned but should be credited to the Consumer Welfare Fund, but where thee is no evidence to the effect that they have paid the tax or such tax is payable in respect of the relevant unit, the refund claim itself would not be (SIC). In the light of the above, I (SIC) no reason to interfere with the Assistant Commissioner's orders.
8. For the abovereasons, I reject all the three appeals.
2. Appeal No.E/610 to 629/97 also arise from the same order. As there were separate Orders-in-Original, the appellants have filed separate 32 appeals in terms of the Order-in-Original.
3. Appellants have not appeared for personal hearing despite notice having been served on them as well as to their advocate.
4. Ld. D.R. Shri S. Kannan submits that the issue pertaining to grant of refund in respect of additional sales-tax and turn-over tax, paid in respect of textile machinery's and parts manufactured by them is already decided by the judgment of the Apex Court in the case of Jain Spinners followed by the Apex Court judgment in ITC case as noted by the Commissioner in para 7 of the order. He submits that the Commissioner has rightly followed the ratio of the Apex Court judgments. He submits that the issue was re-examined by the Apex Court again in the case of UOI Vs. Mafatlal Industries Ltd. as reported in 1995 (89) ELT 247-SC. He submits that the contentions raised by the appellants in the appeal memo are already answered by the judgments of the Apex Court and hence there is no merit in these appeals and the same are required to be rejected as they are not entitled to the refund claimed by them as the said refund is hit by unjust enrichment. Therefore, the order of the Commissioner (Appeals) directing the amounts to be credited to the Consumer Welfare Fund is a correct order.
5. We have carefully considered the findings recorded by the Commissioner (Appeals) which is already extracted above, and also the submissions made by Ld. D.R. We have perused the appeal memo and notice that the appellants have not denied the applicability of the judgments of the Apex Court. Their only plea is that the Commissioner ought to have waited for the pronouncement of judgment of the Apex Court on the vires of Section II (B) with regard to unjust enrichment as raised in Mafatlal Industries case. We notice that the judgment of Mafatlal Industries case has already been pronounced and the validity and vires of Section 11 (B) has been upheld. Therefore, there is no ground left for determination and there is no infirmity in the impugned orders. In that view of the matter, the impugned orders are confirmed and the appellants' appeals are rejected.
(Pronounced & dictated in open court)