Custom, Excise & Service Tax Tribunal
Iac Electricals Pvt Ltd vs Kolkata North Commissionerate on 7 September, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. E/75895/2018
(Arising out of Order-in-Appeal No. 114/Kol-V/2017 dated 22.12.2017
passed by the Commissioner of CGST & CX (Appeal-I), Kolkata.
M/s. IAC Electricals (P) Ltd.
Appellant (s)
Vs.
Commissioner of CGST & C. EX (Appeal-I) Kolkata
Respondent (s)
Appearance:
Shri Amitabha Lahiri, Advocate for the Appellant (s) Shri A. K. Biswas, Suptd. (A. R.) for the Revenue CORAM:
HON'BLE SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: -28.05.2018 Order No. FO/76593/2018 PER SHRI P.K.CHOUDHARY Briefly stated the facts of the case are that the appellant is engaged in the manufacture of Transmission Hardware fittings used in High Tension Power Transmission lines classifiable under Chapter 73 & 76 of the First Schedule to the Central Excise Tariff Act, 1985. The Appellant sells its products to various State Electricity Boards and also to various Mega Power Projects. Clearance of its goods to such projects is done without payment of duty under Notification No. 6/2006-CE dated 01/03/2006 as amended vide Notification No. 46/2008-CE dated 14/08/2008 under Serial No. 91A, against Project Authority Certificates, backed by undertaking furnished/issued by an officer not below the rank of Deputy Secretary, Ministry of Power, Govt. of India.
Such documents are required to be submitted before clearance of goods.
2
Appeal No. E/75895/2018
2. A Show Cause Notice dated 22/07/2014 was issued for recovery of refund of Rs.1,82,901/- along with interest. However, it is seen from the Show Cause Notice that the appellant assessee had debited Rs.1,82,901/- from their CENVAT Credit account vide RG-23A, Part-II, Entry Serial No. 11 dated 26/02/2013 and also paid Rs.30,000/- in cash on account of interest vide GAR-7 Challan No. 50473 dated 26/02/2013.
3. Being aggrieved, by the O.I.O. dt. 13/03/2014, the Revenue filed the appeal before the First Appellate Authority against the Order-in- Original No. R/01/C.Ex./Refund/Behala/Kol-V/13-14.
4. The Ld. Commissioner (Appeals) allowed the appeal filed by the Department by setting aside the Order-in-Original dated 13/03/2014 and remanded the matter to the Original Adjudicating Authority for fresh decision. The Assessee has preferred this appeal.
5. The Ld. Advocate appearing on behalf of the Appellant Company submits that after Post-Audit verification of the refund of Rs.1,82,901/- , the Department observed that the refund which were earlier paid by cheque, should not have been paid in cash since original payment/reversal of credit was made from Cenvat Credit account. Hence, the Department raised one Show Cause Cum Demand Notice and simultaneously filed an appeal before the Lower Appellate Authority. It is the case of the appellant, that the refund order which has been set aside by the First Appellate Authority was not at all erroneous/defective. In any case, it is a Revenue neutral situation since the appellant discharges its duty liability in cash as well as through Cenvat Credit account.
3
Appeal No. E/75895/2018 The Ld. Advocate strongly contended that the impugned order is erroneous inasmuchas the Lower Appellate Authority has not only disallowed the refund but directed the appellant to pay back the cash refund along with interest. If this is to be done without crediting equivalent amount in electronic credit ledger then, it would lead to holding back money by the Government which is not due to the exchequer.
6. The Ld. DR reiterates the order of the Lower Appellate Authority.
7. Heard both sides and perused the appeal records.
8. I find that in the facts and circumstances of the present case, since refund has been made in cash and not by crediting in the Cenvat Credit account of the appellant, the appellant is not getting additional credit for which it has to pay more in cash and less through CENVAT Credit Account. Thus, in effect, it does not make any difference so far, payment of Central Excise Duty is concerned.
9. In view of the above discussion, the Order-in-Original dated 13/03/2014 sanctioning refund of Rs.2,12,90/- is upheld and the impugned order is set aside. The appeal filed by the appellant is allowed.
(Operative part of the order was pronounced in the open court.) Sd/-
(P.K. Choudhary) Member (Judicial) Pooja