Customs, Excise and Gold Tribunal - Mumbai
Pankaj Petropack Pvt. Ltd. vs Commr. Of C. Ex. & Cus., Vadodara on 31 January, 2002
Equivalent citations: 2002ECR116(TRI.-MUMBAI), 2002(143)ELT600(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. On hearing both sides on the stay application, I find that the issue being settled, the appeal can be taken up for disposal. This was done on granting wavier of pre-deposit of duty of Rs. 5,88,295.38 and penalty of Rs. 1,00,000/-.
2. The demand is made on 3 counts.
3. The assessee were supplying certain goods the GSFC under contract. The buyers later reduced unit value of the goods with retrospective effect. Therefore, the total income was reduced. The burden of duty however, remained at the earlier higher price. For clearances made in October, 1992, the assessee took Suo motu credit of Rs. 2,13,361.80 reflecting the excess duty paid. This credit was denied on the ground that the assessee could not take such credit on their own. The principle of undue unjust enrichment was also invoked.
4. I find that where the assessee realised that excess duty had been wrongly paid by them, the legal method was to seek refund from the department. The department thereafter would examine the validity of the claim and then either great or deny the claim. The assessee on his own cannot take the refund unless the department is satisfied that it was their due. While upholding the reversion of this amount, I direct the jurisdictional officers to treat the letter of intimation dated 5-11-1992 as a refund claim and process it as per law. ,,
5. The second count of duty of Rs. 3,43,164.60 is on the ground that credit could not be taken of the duty paid of the goods, which goods were eligible for clearance without payment of duty. I find that in a number of judgments, the Tribunal has held that exemption could be forced upon the assessee and that he is competent to pay duty even the face of an exemption notification [2001 (135) E.L.T. 1392 (Tri-Mumbai)]. The impugned orders on this ground are set aside. Appropriate relief is granted.
6. The third count of Rs. 31,768.98 is on the ground that this credit was taken under Rule 57H when the permission of the appropriate authority officer was not taken. Counsel cited the rule as it existed at the material time which did not specify the condition of prior permission but required a declaration to be made. This rule has been interpreted in this manner in the Tribunal judgment printed in 1993 (44) ECR 215 (Tribunal). The credit taken was admissible and is allowed.
7. The appeal is allowed, in these terms.