Custom, Excise & Service Tax Tribunal
M/S Indian Oil Corporation Ltd vs Commissioner Of Central Excise & ... on 1 April, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/2092/06 & 2419/06 (Arising out of Order-in-Appeal No. GOA/CEX/SNS/58 to 59/2006 dated 29.03.2006 passed by the Commissioner (Appeals), Central Excise & Customs, Goa.) Honble Ms Jyoti Balasundaram, Vice President Honble Mr. A.K. Srivastava, 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 : Yes of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== M/s Indian Oil Corporation Ltd Appellants Vs Commissioner of Central Excise & Customs, Goa Respondents Appearance:
Shri M.H. Patil, Advocate, for Appellants Shri R.B. Tiwari, Jt C.D.R, for Respondent CORAM:
Honble Ms Jyoti Balasundaram, Vice President Honble Mr. A.K. Srivastava, Member (Technical) Date of Decision: 1.4.08 O R D E R NO..
Per: Mr. A.K. Srivastava, Member (Technical)
1. These appeals have been filed by M/s Indian Oil Corporation Ltd against the Order-in-Appeal No GOA/CEX/SNS/58 to 59/2006 dated 29.03.2006 passed by the Commissioner (Appeals), Central Excise & Customs, Goa.
2. Heard both the sides and perused the records.
3. The refund claims filed by the appellants were rejected by the Deputy Commissioner on the ground that the refund of duty arising out of different assessable values does not arise since the assessable value on the day of clearance is the correct assessable value on which the correct duty has been paid.
4. The facts of the case are that M/s Indian Oil Corporation Ltd have different assessable values. One for clearances from their own depot and the other for clearances to other oil companies as per Memorandum of Understanding (MOU) on payment of duty. In the case of transfer to other oil companies, the assessable value is less as compared to the assessable to depot/dealer of M/s Indian Oil Corporation Ltd. The Deputy Commissioner felt that the clearances of the petroleum products under the oil exchange arrangements is not a transaction in terms of clause (a) of Section 4 (1) of the Central Excise Act, 1944 as there is no sale of excisable goods. Accordingly, he held that the value charged to their own depots/dealers (which is also the actual sale value charged by the oil receiving companies of the same station) is to be considered as assessable value for the levy of Central Excise duty for the goods transferred to other oil companies under oil exchange MOU in terms of Section 4 (1)(b) read with Rule 11 and Rule 7 of the Central Excise (Valuation) Rules, 2000. Since the duty has been correctly paid, the question of grant of refund does not arise.
5. On appeal, the Commissioner (Appeals) sustained the rejection of the refund claims on the above ground. In addition, he observed that the appellants have not challenged the assessment orders and hence following the ratio of the Honble Supreme Court judgment in the case of M/s Priya Blue Industries Ltd reported in 2004 (172) ELT 145 (SC), the appellants are not entitled to the refund.
6. We have examined the position. As regards the rejection of refund on the first ground is concerned, we observe that the Tribunal in the case of M/s Hindustan Petroleum Corporation Ltd vs CCE, Visakhapatnam I reported in 2005 (187) ELT 479 (Tri-Bang) has accepted the assessees contention that the transaction value is the price at which the assessee sells the goods to other marketing company and rejected the Revenues contention to the contrary. The civil appeal filed by the Revenue against the Tribunals said order has been dismissed by the Honble Supreme Court as reported in 2006 (196) ELT A 72 (SC). Hence, we hold that the rejection of the refund claim on this ground is not justified.
7. As regards the rejection of the refund claims on the second ground is concerned, it is the grievance of the appellants that they were not put to notice in this regard. We find substance in the grievance of the appellants. It is a fact that the appellants were not put to notice in this regard.
8. We, therefore, feel that in the facts and circumstances of the case, it is appropriate that the cases are remanded to the original adjudicating authority for decision on merits. He will hear the appellants on all aspects including unjust enrichment and pass appropriate orders in accordance with law.
9. The appeals are thus allowed by way of remand.
(Pronounced in Court.) (Ms Jyoti Balasundaram) Vice President (A.K. Srivastava) Member (Technical) rk 2