Custom, Excise & Service Tax Tribunal
M/S. Evershine Marble & Exports Pvt. Ltd vs C.C.E., Jaipur-Ii on 23 September, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 23.09.2015
For Approval & Signature :
Honble Mr. S.K. Mohanty, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No.E/3901/2010-EX[SM]
[Arising out of Order-in-Appeal No.362(CB)CE/JPR-II/2010, dated 01.10.2010 passed by the C.C.E.(Appeals), Jaipur-II]
M/s. Evershine Marble & Exports Pvt. Ltd. Appellant
Vs.
C.C.E., Jaipur-II Respondent
Appearance Mr. Bipin Garg, Advocate - For Appellant Ms. Kanu Verma Kumar, DR - For Respondent CORAM: Honble Mr. S.K. Mohanty, Member (Judicial) Final Order No._54169/2015_, dated 23.09.2015 Per Mr. S.K. Mohanty :
Recovery of the amount of Central Excise duty erroneously allowed as refund, is the subject matter of present dispute.
2. The brief facts of the case are that the appellant is engaged in the manufacture of marble slabs and tiles falling under Chapter 25 of the Central Excise Tariff Act, 1985. On 10.02.2003, the appellant had debited Rs.2,90,396/- in its CENVAT register i.e. RG-23 C Part-II. The dispute regarding levy of Central Excise duty on the final product was adjudicated by the ld. Addl. Commissioner vide order dated 24.12.2003 against the appellant. In appeal, the ld. Commissioner (Appeals) vide order dated 26.03.2004 has allowed the appeal of the appellant, holding that the marble slabs are non-dutiable in view of the decision of Hon'ble Supreme Court in the case of Aman Marble Industries Pvt. Ltd. Vs. CCE, Jaipur [2003 (157) ELT 393 (SC)]. Consequent upon the favourable order by the Commissioner (Appeals), the appellant had filed the refund application, claiming refund of the amount debited in the CENVAT register. The adjudicating authority vide order dated 24.08.2006 has rejected the refund application on the ground that the same cannot be paid in cash and that the claim application is barred by limitation of time. The said adjudication order was appealed against before the ld. Commissioner (Appeals), who vide order dated 08.12.2006 allowed the appeal in favour of the appellant, by restoring the credit in RG 23C register. Pursuant to the said appellate order, the appellant lodged the refund claim, which was considered vide order dated 28.01.2008, permitting the appellant to take credit in its register. Against the appellate order dated 08.12.2006, passed by ld. Commissioner (Appeals), Revenue has preferred the appeal before this Tribunal. Pending disposal of the appeal by this Tribunal, the Department issued the protective Show Cause Notice on 20.10.2008, seeking recovery of the amount erroneously sanctioned and refunded. The appeal filed by the appellant was disposed of by the Tribunal vide order dated 07.11.2008, allowing the appeal of the Revenue. Consequently, protective Show Cause Notice dated 20.10.2008 was adjudicated vide order dated 26.11.2009, confirming the demand proposed therein. Feeling aggrieved with the adjudication order dated 26.11.2009, the appellant preferred the appeal before the ld. Commissioner (Appeals), which was disposed of vide the impugned order dated 01.10.2010, rejecting the appeal filed by the appellant. Hence, the present appeal is before this Tribunal.
3. Heard both parties and perused the records.
4. I find that for rejecting the appeal of the appellant, ld. Commissioner (Appeals) has recorded the following findings in the impugned order:-
From the above facts and contentions, the legal status of the case after the CESTAT allowed the department appeal vide Final Order No.1481/08-SM (BR) dated 07.11.2008 is that Order-in-Original No.40/2006 Ref. Dated 24.08.2006 has been restored where in refund was rejected on ground of limitation. However, the impugned order has been passed to complete the proceedings initiated under show cause notice dated 20.10.2008 for recovery of erroneous refund granted. The contention of appellant that order granting refund had attained finality since no appeal was filed against it, is not tenable under law, as the existence of this order dependent on finality of Commissioner (Appeal) order which was already appealed. Hence, appeal against such order linked to source order, already under appeal was unwarranted. In view of CESTAT order, this order has also lost validity when order in compliance of which it was passed is set aside. As for as legality of impugned order is concerned the erroneous refund granted can be demanded under section 11A of Central Excise Act, 1944 as per provision of law. The show cause notice has clearly mentioned that it is being issued to protect the recovery of amount erroneously allowed / refunded to ensure the recovery is not barred by limitation. I find Boards circular No.423/56/98-EX dtd 22.09.98 relevant here, which has been issued on basis of Supreme Court decision in case of CCE V/s. Re-rolling Mills [1997 (94) ELT 8 (SC)]. Board has clarified that timely demand should invariably be raised under section 11A of the Central Excise Act, 1944 since the order passed under section 35 E (2) ibid does not automatically result in the recovery of refund. In view of this demand notice was correctly issued and it can not be said to be reviewing of the earlier order particularly when show cause notice included no new ground. Further show cause notice issued as protective measures are subjected to outcome of decision by appellate authority order in the matter. I find the impugned order has reference of the CESTAT decision & passed accordingly. Hence, the case law cited by the appellant are not applicable to facts of this case. In view of the CESTAT decision in the matter the appeal is unwarranted and devoid of any merit and liable to be rejected.
5. Since the ld. Commissioner (Appeals) has elaborately discussed the facts vis-`-vis the position of law, and held the case against the appellant, I do not find any infirmity in the impugned order. Therefore, the appeal filed by the appellant is dismissed.
[Operated portion pronounced in the open court] (S.K. Mohanty) Member (Judicial) Neha -2-