Custom, Excise & Service Tax Tribunal
M/S.Vippy Industries Ltd vs Cce, Indore on 27 November, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:27.11.2015
Excise Appeal No.4022/2006-EX(DB)
[Arising out of Order-in-Appeal No.IND-I/292/2006 dated 23.08.2006 passed by the Commissioner (Appeals-I), Customs & Central Excise, Indore]
M/s.Vippy Industries Ltd. Appellants
Vs.
CCE, Indore Respondent
Appearance:
Rep. by Shri A. Upadhyay, Advocate for the appellant. Rep. by Ms. Neha Garg, DR for the respondent. For approval and signature:
Honble Smt. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1 Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities? Coram: Honble Smt. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No.53667/2015 Dated:27.11.2015 Per B. Ravichandran:
The present appeals is against the order dated 23.08.2006 by the Commissioner (Appeals), Indore. The appellants are engaged in the manufacture of de-oiled meal/cake, soyabean meal, edible oil, etc. liable to central excise duty.
2. On 3.4.2006, the appellant filed a claim for refund of Rs.69,95,497/- for the period from 17.12.2004 to 28.02.2005. They claimed that they were paying excise duty on edible oil till 17.12.2004 and stopped payment thereafter relying on Honble Supreme Courts decision in Shyam Oil Cake Ltd. (C.A. NO.1287-1289 of 1999 decided on 23.11.2004). The Honble Supreme Court held that refining oil does not amount o manufacture. Thereafter, in the Finance Act, 2005. Chapter Note 6 was added to the effect that refining of edible oil amounts to manufacture. This amendment was made effective from 1.3.1986.
3. The refund claim was rejected by the Original Authority and on appeal, the ld. Commissioner (Appeals) upheld the original order. The appellant is before us against this rejection.
4. Ld. Counsel for the appellant, Shri A. Upadhyay submitted that the appellant paid the disputed amount under protest. Even in the light of retrospective amendment made through Finance Act, 2005, no tax can be collected from them for the past. He further submitted that an exemption available can be claimed by way of refund.
5. Ld. AR, Ms. Neha Garg submitted that the appellant paid the central excise duty on 2.3.2005 and 4.3.2005. The issue regarding correctness of this payment was settled by order-in-original dated 19.07.2005. During the said proceedings, the appellant simply stated that since they have already remitted the duty, the proceedings should be closed. Accordingly, duty already paid was confirmed by the Original Authority. The ld. AR further stated that on appeal, the ld. Commissioner (Appeals) also vide order dated 6.10.2005 confirmed the original order. No further appeal has been filed and the matter reached finality. The ld. AR stated that when the duty payment has become final in terms of the Original / appellate order, a separate claim for refund of the said amount is legally not tenable.
6. We have heard both the sides and examined the appeal records. We find that the amount claimed as refund relates to duty payable on refined oil for the period 17.12.2004 to 12.01.2005. The amount was paid by the appellants in March, 2005. The correctness of payment was confirmed by due adjudication by the Original Authority which was upheld by the appellate authority - Commissioner (Appeals). There is no exemption available for the product during the relevant time. The refund claim was filed based on the Honble Supreme Courts decision in another assessees case as stated earlier. Retrospective amendment of duty liability on refined oil was brought by Finance Act, 2005 effective from 1986. The duty payment was made even before the retrospective amendment was brought to force. The appellants claim for refund on 3.4.2006 is totally devoid of any merit. There was duty liability on the product during the relevant time was confirmed by the adjudication/appeal proceedings. The matter reached finality in the absence of any further appeal. Filing a claim for refund, after one year of payment, the appellant is attempting to bye-pass confirmed demand paid already, by resorting to a fresh backdoor method. This is not legally sustainable. The case law cited by the appellant, Honble Supreme Courts decision in Share Medical Care 2007 (02) LC X 0004 deals with assessees right to claim a benefit under a notification at a later stage. The facts of the present case are different. Hence, the appellant is claiming refund of amount which was duly paid and confirmed by due adjudication/appeal orders. We find the present appeal is devoid of merit and liable to be rejected. Accordingly, we dismiss the appeal.
[Operative portion already pronounced in open court] ( Sulekha Beevi C.S.) Member (Judicial) ( B. Ravichandran) Member (Technical) Ckp.
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