Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Pune-I vs S.S. Engineers on 26 April, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.
Appeal No. E/CO-95/2012-Mum.
E/830/2012-Mum. & E/85559/2913-Mum.
(Arising out of Order-in- Review Order No. 01/CEX-R/2012 dt 21.05. 2012 & Order-in-Appeal No. PI/MMD/241/2012 dt. 19.12.2012 passed by the Commissioner (Appeals) Central Excise, Pune-I )
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.K. Jain, Member (Technical)
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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?
============================================================= Commissioner of Central Excise, Pune-I :
Appellant VS S.S. Engineers :
Respondent Appearance Shri Ahibaran, Additional Commissioner (A.R.), for Appellant Shri Prasad Paranjape, Advocate for respondent CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.K. Jain, Member (Technical)
Date of hearing : 26/4/2013
Date of decision : 26/4/2013
ORDER NO.
Per : Ashok Jindal
Revenue has filed appeals against the impugned orders.
a) For dropping the demand by the adjudicating authority and consequently resulting in a refund of Rs.50,00,000/- to the respondents and
b) Sanctioning of refund claim by the Commissioner (Appeals) holding that bar of unjust enrichment is not applicable to the facts of this case.
2. As the issue involved in the matter pertains to the show cause notice issued to the appellants dt. 6th& 7th April 2011. Therefore, both the appeals are disposed of by the common order.
3. The brief facts of the case are that the respondents are engaged in the activity of Turnkey Projects of erection and commissioning of machinery and equipment required for the sugar plant. As per contracts between the respondents and their respective buyers for installation of turnkey projects, the respondents are entered into the contracts and as per the contract, there was escalation charges in the transaction value on the basis of that escalation clause. The respondents issued proforma invoice to their buyers but the proforma invoice was not accepted by the buyers. No payment against the proforma invoice was paid. The Revenue is of the view that amount shown in proforma invoice is includible in assessable value. Therefore, show cause notice was issued for demanding the differential duty on the basis of proforma invoice. Adjudicating authority found that the amount shown in proforma invoice was not accepted by the buyers and also the proforma invoice has no legal sanctity. In the light of accounting principle as proforma invoices never considered a valid document for demanding duty and no any evidence has been brought by the Revenue that the respondents have received any amount over and above the transaction value. Therefore, adjudicating authority dropped the proceedings against the respondents. Against said order Revenue is in appeal by way of in Appeal No. E/830/2012-Mum.
4. Consequent to the dropping the proceedings against the respondents, the respondents filed a refund claim of Rs.50, lakhs which was deposited by the respondents during the course of investigation. The adjudicating authority sanctioned the refund claim but deposited into Consumer Welfare Fund which was appeal before the Commissioner (Appeals), who sanctioned the refund claim of the respondents. Against that order also, the revenue is in appeal by way of appeal No. E/85559/2013-Mum.
5. Heard both sides.
6. In this case first issue is that whether differential duty can be demanded on the basis of proforma invoice or not.
7. We do agree with the observations of the adjudicating authority that proforma invoice has no legal sanctity in the eyes of law and same cannot be basis for the demand of differential duty. It is also an admitted fact that these proforma invoices were not accepted by the buyers and no payment was made by the buyers to the respondent as per these proforma invoice. Therefore, the question of demand of differential duty does not arise. Accordingly, Revenues appeals deserves no merit, hence it is dismissed.
8. The next issue comes before us whether unjust enrichment is applicable to the facts of the case or not. It is an admitted fact that the respondents have not received any amount over and above transaction value. Therefore, the question of unjust enrichment does not arise. Accordingly, Revenue appeals deserves no merit. Hence it is dismissed.
9. In the result, both the appeals of Revenue are dismissed.
(Pronounced in court on ) (P.K. Jain) Member (Technical) (Ashok Jindal) Member (Judicial) Sm ??
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