Custom, Excise & Service Tax Tribunal
Coca Cola India Pvt. Ltd vs Commissioner Of Customs, Pune on 30 September, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO. E/833/2009-Mum. (Arising out of Order-in-Appeal No. PIII/38/09 dated 23.3.2009 passed by the Commissioner (Appeals) Central Excise, Pune -III) For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
============================================================= Coca Cola India Pvt. Ltd.
:
Appellants VS Commissioner of Customs, Pune.
Respondents Appearance None for Appellants Shri B.P. Pareira, JDR Authorized Representative CORAM: Shri Ashok Jindal, Member (Judicial) Date of decision : 30/09/2010 ORDER NO. Per : Ashok Jindal, Member (Judicial)
The appellant has filed this appeal against the denial of the refund claim filed before the Assistant Commissioner, Pune on the ground that as the appellant have made a pre-deposit of the amount in dispute as per the order of Commissioner (Appeals) Hyderabad-III. The refund claim before the Assistant Commissioner is not maintainable.
2. The appellant vide his letter dated 28.9.2010 made a request to this Tribunal to pass the order on merits as per the ground taken by the appellant in their appeal memorandum. In the grounds of appeal the appellant submits that they have made the pre-deposit at Pune as per the directions of the Commissioner (Appeals) Hyderabad hence the refund could be given by the Commissioner, Pune. He further submits that as per the Boards Circular No. F. No.275/37/2K-CX.8A, dated 2.1.2002 the Board has clarified that in case of refund of pre-deposit the application for refund is not required and same may be returned to the assessee without waiting for the refund application. To support this contention he placed reliance on Bajaj Auto Ltd. Vs. CCE reported in 2007 (219) E.L.T. 447 (Tri.-Mumbai).
3. On the other hand, the learned JDR submitted that it is not disputed that appellant are not entitled for the refund claim but the refund was denied on the ground that the Assistant Commissioner, Pune has no jurisdiction to deal with such case, as the pre-deposit direction was made by the Commissioner (Appeals), Hyderabad.
4. Heard the learned DR and considered the submissions of the appellant. It is an admitted fact that the appellant is entitled for refund claim without filing the application for refund as per the Board Circular No. F. No.275/37/2K-CX.8A, dated 2.1.2002 and also Boards Circular No. 802/35/2004-CX dated 8.12.2004 as no refund has been given to the appellants. In that event, the appellants can approach to the concerned Commissionerate, which have directed to the appellants to make pre-deposit.
5. With these observations, I do not find any infirmity with the impugned order rejecting the refund claim on the ground of jurisdiction. Hence, the impugned order is upheld, the appeal is rejected.
(Pronounced in court) (Ashok Jindal) Member (Judicial) Sm 3