Custom, Excise & Service Tax Tribunal
M/S Adani Power Ltd vs Cce, Bhubaneswar on 31 August, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
KOLKATA
Excise Appeal No. 75308 of 2017 with
Excise Misc. Application No. 75799 of 2017
(Arising out of Order-in-Appeal No. 109/CE/B-II/2016 dated 30.11.2016 passed by the Commissioner (Appeals) Central Excise, Customs & Service Tax, Bhubaneswar)
DATE OF HEARING : 31.08.2017
DATE OF DECISION : 31.08.2017
M/s Adani Power Ltd. . Appellants
(Rep by Sh. Naresh Thakkar, Adv.)
VERSUS
CCE, Bhubaneswar . Respondent
(Rep. by Sh. D. Haldar, DR) CORAM : HONBLE MR. JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE MR. V. PADMANABHAN, MEMBER (TECHNICAL) FINAL ORDER NO. FO/A/77091/2017 & MO/75330/2017 PER JUSTICE Dr. SATISH CHANDRA :
Shri Naresh Thakkar, learned Counsel for the assessee-Appellants, submits that an early hearing may kindly be granted for the reason that this is a matter of refund.
2. After hearing the rival submissions, we grant the early hearing of the matter. Consequently, the Misc. Application for early hearing is allowed.
3. With the consent of both the sides, we have heard the appeal on merit.
4. After hearing both sides and on perusal of the material on record, it appears that an identical issue has come up before this Tribunal in the assessee-Appellants own case [M/s Adani Power Limited vs CCE, Bhubaneswar], Final Order No. 76332-76339/2017 dated 13.07.2017, wherein the following order was passed :
These eight appeals are involving identical set of facts relating to entitlement of the appellant for refund of Central Excise duty paid on coal procured by them on payment of duty from M/s Mahanadi Coal Field Ltd.. The appellant is developer/co-developer of SEZ in Mundra Port. The appellant submitted claims for refund with the Central Excise officers at Cuttack claiming that the Central Excise duty should not have been paid on the coal supplied to SEZ. These claims were rejected by the original authority on the ground that the appellant is falling under special economic zone and as such the said officer has no jurisdiction to decide claim by the person located in SEZ, in terms of SEZ Act and Rules made thereunder. In other words, the original authority held that SEZ being area out-side territory of India, he is not competent to examine the claims. Further, it is also recorded that the due procedure for clearance of coal to the appellant, like ER-1 etc, has not been followed in the present case. On this ground also, the claims were not accepted. On appeal filed by the appellants, vide the impugned order, the Commissioner (Appeals) upheld the rejection. He also followed the same reasons adopted by the adjudicating authority.
2. The ld. Counsel for the appellants submits that in terms of Section 11B of Central Excise Act, 1944, any person who suffers Central Excise duty, which is not payable as per law, can apply for refund of the same. This legal position is well-settled. He, however, stated that the supplier of coal has paid the duty, which should not have been paid and duty instance has been suffered at the hand of the appellant. They are claimants of the same in terms of Section 11B. Regarding the claimants located at SEZ being outside jurisdiction of Central Excise authorities, he submitted that the duty has been paid towards Central Excise liability and jurisdictional authorities have collected the same. Accordingly, the excess payment, if any, has to be decided by that authority only. The ld.Counsel relied on the various decided case of the Honble Supreme Court and the Honble Gujarat High Court in support of the above submissions.
3. The ld.A.R. for the Revenue submitted that the lower appellate authority rejected the claims mainly on the grounds of lack of jurisdiction and also for not following the statutory procedure for clearance of duty paid coal to the appellants. He submitted that the detailed examination on merit was not made by the lower authorities as the claim was found not tenable on these grounds alone.
4. We have heard both sides and perused the appeal records.
5. Regarding the claim of refund of Central Excise duty, we note that Section 11B states any person claiming refund of any duty of excise. No distinction has been made that the claimant should be the manufacturer or the person, who paid the duty to the Government. In this regard, we refer to the decision of the Honble Supreme Court in the case of Oswal Chemicals & Fertilizers Ltd. Vs. Commr. of Central Excise, Bolpur : 2015 (318) ELT 617 (S.C.), wherein the Apex Court observed that the appellant, who had paid the Excise duty to the manufactuer, had the locus-standi, to file the application claiming the refund of duty. In the said case also, the claim was not filed by the manufacturer, who discharged the duty on the goods, but by the buyer of the goods. Similar ratio has been followed by the Honble Allahabad High Court in the case of Indian Farmers Fertilizers Co-operative Ltd. Vs. Commr. (K-II), Central Excise : 2016 (331) ELT 386 (All.).
6. In such situation, we note that the appellants do have locus-standi to prefer the claim for refund, if the same is not payable/paid in excess, as authorized by law.
7. The next point is for jurisdiction to prefer to such claim. The lower authorities held that in terms of SEZ Act, the appellant is situated outside territory of India and no claim can be entertained by the jurisdictional Central Excise Officers. We note that the similar issue has come up before the Honble Gujarat High Court in the case of Anita Exports Vs. Union of India : 2015 (320) ELT 743 (Guj.) and Roxul Rockwool Insulation India Pvt. Ltd. Vs. Union of India : 2016 (334) ELT 412 (Guj.). The Honble High Court after examining the claim for refund under Customs Act, 1962, held that when the duty is collected by the Customs authorities, excess if any has to be dealt with by the said authorities only. In the present case, the duty of excise has been paid by M/s Mahanadi Coal Field Ltd., though by applying the relevant provisions of law, they ought not to have paid the duty as the are to recognized SEZ unit/developer. Regarding the duty paid nature of the product, receipt of the said product by the appellant, there are no disputes. In fact, the ld.Counsel for the appellant, submitted that the details of duty paid on coal covered by the various documents has been certified by the specified officer-in-charge of the appellant in the SEZ.
8. We also note that the jurisdiction issue has been under consideration with the Ministry of Finance as well as Ministry of Commerce and ultimately the Ministry of Commerce issued Notification dated 05.08.2016. This Notification specified that the refund, demand, jurisdiction, review and the appeal with reference to various operations under SEZ Act, 2005, shall be with a jurisdiction of Central Excise authorities in accordance with the relevant provisions of Customs Act, 1962, Central Excise Act, 1944 and Finance Act, 1994. We find that the said Notification makes the position amply clear on the question of jurisdiction of Central Excise officers to deal with the claim in the present matter.
9. In view of the above discussions and analysis, we set aside the impugned order and direct the original authority to examine the claim afresh on merit along with the connected documents and pass a fresh order on the claim made by the appellants, keeping in view the above observations.
10. At this juncture, the ld. Counsel requested for early resolution of their claim since the claims were pending from 2011. Accordingly, we direct the jurisdictional officer to examine the claims and pass an order within a period of three months from the date of receipt of this order.
5. By following our earlier decision (supra), we set aside the impugned order and remand the matter to the jurisdictional authority to examine the claim and pass the order along with the earlier order, which is still pending, but by providing a reasonable opportunity to the assessee-Appellants to present their case with liberty to file additional evidence, if any, as per law.
6. In the result, the appeal filed by the assessee-Appellants is allowed by way of remand. (Dictated & pronounced in the open court) (V. PADMANABHAN) MEMBER (TECHNICAL) (JUSTICE (Dr.) SATISH CHANDRA) PRESIDENT Golay 1 A.No. E/75308/17