Custom, Excise & Service Tax Tribunal
M/S. Thandava Co-Operative Sugars Ltd vs Cce, Visakhapatnam on 12 March, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 12/03/2010
Date of decision:12/03/2010
Appeal No.E/591/07
(Arising out of Order-in-Appeal No.17/2007(V-II)CE dt. 21/5/2007 passed by Commissioner(Appeals), Visakhapatnam)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Thandava Co-operative Sugars Ltd.
..Appellant(s)
Vs.
CCE, Visakhapatnam
Respondent(s)
Appearance Mr.G.Prabhakara Sastry, Advocate for the appellant.
Ms. Joy Kumari Chander, Jt.CDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This appeal is directed against the Order-in-Appeal No.17/2007(V-II)CE dt. 21/5/2007.
2. Heard both sides and perused records.
3. The issue involved in this case is regarding the rejection of refund claim of the education cess paid on the clearances of 33,058 quintals of sugar manufactured during the period 9/7/2004 to 31/8/2004. Both the lower authorities have rejected the refund claim on the basis of unjust enrichment. I find that the issue involved is the question of unjust enrichment. The findings of the ld. Commissioner(Appeals) for unjust enrichment are as follows:-
7. I find that in the subject case the respondents have passed on the burden of education cess on pre-levy stock to their customers. The appellant urged that these buyers are pressing for refund of the education cess paid by them to the appellant at the time of purchase of sugar. However, the appellant has not submitted any proof/evidence that the appellants buyers have not passed on the burden to the customers. In the absence of the proof of not having passed on the burden to the ultimate customers the refund claim will be hit by the unjust enrichment clause and the same cannot be refunded to the appellant.
4. On perusal of the grounds of appeal and also the submissions made now, I find that the appellant is not able to rebut the findings of the ld. Commissioner(Appeals). In view of this, I hold that the impugned order is correct, legal and does not suffer from any infirmity. Appeal is rejected. (Pronounced and dictated in open court) (M.V.Ravindran) Member (Judicial) Nr 3