Custom, Excise & Service Tax Tribunal
M/S South Eastern Coal Fields Ltd vs Cce & St, Raipur on 23 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING : 27/10/2016. DATE OF DECISION : 23/11/2016. Excise Appeals No. 59400, 59515-59516 and 59524 of 2013 [Arising out of the Order-in-Appeal No. 30/RPR-II/2013 dated 15/05/2013, 146/RPR-I/2013 dated 04/06/2013, 151/RPR-I/ 2013 dated 04/06/2013 and 149/RPR-I/2013 dated 04/06/2013 all passed by The Commissioner (Appeals), Central Excise, Raipur.] M/s South Eastern Coal Fields Ltd. Appellant Versus CCE & ST, Raipur Respondent
Appearance Shri P.K. Sahu, Advocate for the appellant.
Shri Yogesh Agarwal, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Justice Dr. Satish Chandra, President Honble Shri B. Ravichandran, Member (Technical) Final Order No. 55211-55214/2016 Dated : 23/11/2016 Per. B. Ravichandran :-
These are four appeals against orders of Commissioner (Appeals), Raipur upholding the rejection of claims for refund of excise duties filed by the appellant. The appellants are producing coal and clearing the same on payment of Central excise duty to various power companies. The sale is governed by the price notified by Coal India Ltd. (CIL). CIL enhanced the price of coal with effect from 01/01/2012. However, later by notification dated 31/01/2012 the enhancement was withdrawn retrospectively with effect from 01/01/2012. The appellants paid excise duty for the month of January 2012 with enhanced price. The buyers of coal paid coal price and duty thereon as per earlier terms without enhancement. Appellants filed refund claims for excess paid duty due to withdrawal of enhancement of coal price notified by CIL.
2. The claims were rejected by the Original Authority and the rejections were upheld by the First Appellate Authority. Both of them recorded that once the duty has been passed on at the time of clearance of the goods, subsequent issue of credit notes have no bearing on the initial passing on incidence of duty to the customer and thus the claim of refund is hit by clause of unjust enrichment. The lower authorities held that the appellants failed to establish that they had not passed on duty burden upon the customers.
3. We have heard the learned Counsel for the appellants and learned AR for the Revenue. We have perused the appeal records including written submission made at the time of arguments.
4. The admitted facts of the case are :
(a) the price of coal for supply to power generating units is in terms of price notifications issued by Coal India Ltd. The appellants are a subsidiary company of CIL. The sale price of coal will be as per CIL notifications has been agreed upon between appellant and power companies ;
(b) the enhancement of coal price w.e.f. 01/01/2012 was later withdrawn on 31/01/2012 retrospectively w.e.f. 01/01/2012 ;
(c) the appellants paid differential duty on enhanced price during January 2012 under protest ;
(d) the claims for refund of excess duty have been filed within time prescribed under Section 11B of Central Excise Act, 1944.
5. We note that both the lower Authorities have rejected the claims without verifying the claims and documents submitted by the appellants. The orders were perfunctory and vague. Certain case laws were relied without examining factual context and applicability. To begin with we note that when excess duty payment was not contested the refund should have been sanctioned and paid either to the welfare fund or to the appellants. The Original Authority simply rejected the appellants claim with no finding/order regarding crediting the amount to welfare fund in terms of Section 11B.
6. Further, we note that lower authorities recorded that the appellant failed to produce any documentary evidence in respect to the transactions made with buyer companies. We have perused appeal records. The appellants submitted, categorically, that they have not passed on the burden of the excess duty amount to the customers at any point of time. They have submitted :
(a) bank statements for the relevant period alongwith statements reconciling with bills raised by appellant to power companies ;
(b) certificates from the power companies in which they had stated that they had not paid the excess duty amount to the appellant ;
(c) certificate of Chartered Accountants stating that the excess excise duty paid under protest by the appellant has not been realized from buyers and has not been charged to the P&Z account. The same is appearing in excise duty receivable account in balance sheet as on 31/12/2012.
7. We note that the lower authorities have not examined these documents in right perspective and gave a summary, vague finding. The facts are easily verifiable and any further clarification could have been easily obtained from the appellants. When the excess duty payment is not doubted by the lower authorities, it is imperative that the said amount can not be retained by the Revenue. It should be credited to welfare fund (in case appellant failed to establish that the burden of excess duty is not passed on further) or to paid to appellant. The Original Authority did not give a finding about this. In our opinion the appellants have prima facie produced sufficient documentary evidence to support their claims for refund. Both the lower authorities failed to appreciate that the presumption under Section 11B is rebuttable. When evidences for such rebuttal are produced by the appellant by way of certificates from customers and CA, bank statement and other documents, then it is the duty of the sanctioning authority to consider all such evidences and pass order. We note that the same was not done in the present cases with required diligence. Presumptive conclusions were drawn and to support various case laws were relied upon.
8. We find that the impugned orders are not sustainable in view of the analysis as above. The same are set aside. The matters are remanded back to Original Authority for due verification of the refund claims by the appellant alongwith all supporting documents. Due opportunity shall be provided to the appellant to submit their defence/clarification. Considering the amounts involved and the claims are four years old, we expect the Original Authority to pass final orders within three months of this order.
9. The appeals are allowed by way of remand as above.
(Order pronounced in open court on 23/11/2016.) (Justice Dr. Satish Chandra) President (B. Ravichandran) Member (Technical) PK ??
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5EX/59400 of 2013