Custom, Excise & Service Tax Tribunal
M/S.V.D.S.R. Rolling Mills vs Commissioner Of Central Excise, ... on 28 May, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.E/515/2002
[Arising out of Order-in-Appeal No.79/2002 (M-II) dated 21.06.2002 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Mr. P.KARTHIKEYAN, 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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s.V.D.S.R. Rolling Mills
Appellants
Versus
Commissioner of Central Excise, Chennai
Respondent
Appearance :
Shri S. Venkatachalam, Adv. Shri V.V. Hariharan, JCDR For the Appellants For the Respondent CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Honble Mr. P. Karthikeyan, Member (Technical) Date of hearing : 28.05.2009 Date of decision : 28.05.2009 Final Order No.____________ Per P. Karthikeyan This is an appeal filed by M/s.V.D.S.R. Rolling Mills, Thiruvanamalai (VDSR). VDSR engaged in the manufacture of re-rolled products falling under Chapter Heading 72 of the Central Excise Tariff Act and operated under the compounded levy scheme. In April, 2000, V.D.S.R. made clearances of CTD bars under invoices No.5 to 20 and 23 between 07.04.2000 and 24.04.2000. The appellants did not pay duty due at the rate of 16% ad valorem on these clearances. The quantity of CTD bars so cleared was 175.740 MTs. Apparently, appellants were under the impression that re-rolled products manufactured from MS Ingots which had suffered duty under the compounded levy scheme were exempt from the excise levy. They were also not aware of the Notification No.29/2000-CE(NT) dated 30.01.2000 which extended deemed credit at the rate of 12% of the value on the stock of MS Ingots lying with the appellants on 31.03.2000. On their coming to know of the legal position as regards to duty liability of CTD bars cleared with effect from 01.04.2000 as well as the availability of deemed credit on the MS Ingots in stock as on 31.03.2000 they took credit of Rs.2,35,151/- on 181.175 MTs of MS Ingots in stock and paid duty of Rs.4,20,886/- at the rate of 16% ad valorem on a total sale price of Rs.26,30,537/- realized on sale of 175.740 MTs of CTD bars cleared under invoices No.5 to 20 and 23 raised between 07.04.2000 and 24.04.2000. The assessee learned that the price realized on sale of the CTD bars cleared without payment of duty had to be considered as inclusive of the duty and that they had paid an amount of Rs.58,053/- in excess of duty due of Rs.3,62,833/-. Accordingly, they filed a refund claim for Rs.58,053/-. The original authority rejected the refund claim as not admissible. Vide the impugned order, the Commissioner (Appeals), sustained the order of the original authority rejecting the plea of the appellants that their duty liability was limited to the duty due on the value worked out treating the sale price as inclusive of the duty.
2. Heard both sides. We find that the appellants had cleared CTD bars in April, 2000 without payment of duty and realized an amount of Rs.26,30,537/-. Later on, they paid an amount of Rs.4,20,886/- as duty due on these clearances treating the sale price as the assessable value. It is settled law that when excisable goods are cleared and sold without payment of duty, the price realized has to be treated as inclusive of the excise duty due and the duty liability has to be arrived at on the value so worked out. In the instant case, it is the common case of the parties that the appellants had paid an amount of Rs.4,20,886/- treating the sale price of the CTD bars as the value. When the value is correctly worked out, the duty liability on the impugned clearances was only Rs.3,62,833/- and the appellants had paid an excess amount of Rs.58,053/-. As the entire duty amount was paid subsequent to the impugned clearances, refund of the excess duty paid does not attract the vice of unjust enrichment. The appellants are entitled to refund of Rs.58,053/- claimed by them. Accordingly, we vacate the impugned order as not sustainable in law and allow the appeal filed by M/s.V.D.R.S. Rolling Mills with consequential relief.
(Operative portion of the order was pronounced
in open court on 28.05.2009)
(P.KARTHIKEYAN) (JYOTI BALASUNDARAM)
MEMBER (T) VICE-PRESIDENT
ksr
02-06-2009
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