Custom, Excise & Service Tax Tribunal
Techser Power Solutions Private ... vs Commissioner Of Central Excise, ... on 23 January, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 20078 / 2014 Appeal(s) Involved: E/87/2008-SM [Arising out of Order in Appeal No.63/2007 dated 30/09/2007 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.] TECHSER POWER SOLUTIONS PRIVATE LIMITED NO.652, 3RD FLOOR, DR.RAJKUMAR ROAD, 2ND STAGE, RAJAJINAGAR, BANGALORE 560 010 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax - BANGALORE-I POST BOX NO 5400, CR BUILDINGS, BANGALORE - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. Mohammed Rahim, Advocate RAVI SHANKAR & CHANDER KUMAR # 152, RACE COURSE ROAD,BANGALORE BANGALORE - 560001 KARNATAKA For the Appellant Mr. S. Teli, Dy. Commissioner (AR) For the Respondent CORAM:
SHRI B.S.V. MURTHY, HONBLE MEMBER (TECHNICAL) Date of Hearing: 23/01/2014 Date of Decision: 23/01/2014 Order Per : B.S.V MURTHY The appellant is engaged in the manufacture of UPS and equipments falling under Chapter 85 and 90 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant is duly registered under the Central Excise provisions vide Registration No.AABCT0359DXM001. The appellant received a purchase order for supply and installation of 305 Nos. of 1 KVA online UPS system with 4 hours backup and 7 Nos. of 2KVS online UPS system with 2 hours backup from the Public Works Department (PWD), Government of Karnataka. The appellant executed the above purchase order and supplied the goods on various dates between 20.6.2005 to 1.8.2005. At the time of removal of UPS, the appellant charged the excise duty on the manufactured goods since the purchase order issued by PWD indicated that value was inclusive of excise duty and sales tax. The consignee viz., PWD, Government of Karnataka was not aware of, nor they indicated in the purchase order that they would be eligible for the duty exemption benefit in terms of Notification No.108/95-CE dated 20.8.1995. The total amount of excise duty including education cess paid by the appellant was Rs.14,80,275/-. The buyer-cum-consignee namely PWD, Government of Karnataka released adhoc payment to the appellant towards the material but did not pay the excise duty portion on the ground that the project under World Bank loan assistance vide loan No. LN/4606-IN issued by project implementation unit, Karnataka State Highways implementation project and that PWD were eligible for the benefit of exemption of Notification No.108/95-CE dated 20.8.1995 and PWD handed over to the appellant project authorization certificate. Thereafter the appellant wrote a letter on 18.11.2005 to the Assistant Commissioner wherein they requested him to clarify:
(i) Whether they can claim the refund of Central Excise duty remitted by them but not paid by PWD though the bill was raised including Central Excise duty.
(ii) If the refund of duty is to be claimed, can it be claimed by them or it has to be claimed by the consignee.
This letter was replied promptly by Assistant Commissioner in his letter dated 24.11.2005 wherein he gave his view that since the appellant had not fulfilled the condition of Notification No.108/95, the appellant is not eligible for refund. It was also pointed out that as per the Notification No.108/95 CE dated 28.8.1995, the manufacturer was required to produce the certificate from the relevant authority that the goods are required for the projects eligible to receive goods without payment of duty under Notification No.108/95. He informed them that since they have failed to comply with the conditions, the appellant or the consignee would not be eligible to claim refund of Central Excise duty. Thereafter the appellants approached the PWD and PWD finally wrote to the Deputy Commissioner on 3.3.2006 that they would not reimburse the amount which was not paid by them being the Central Excise duty and the duty paid by the appellant may be reimbursed to the appellant. They also stated that there was delay on their part in producing the certificate. To this letter also department promptly replied on 23.3.2006 and it was stated that the certificate sent by them is of no relevance and if PWD did not want to pay the amount or did not pay the contractual amount to the customer, the Central Excise department is not concerned with the same and the certification that the items were required for project and the amount will not be reimbursed by the customer are of no relevance under the Central Excise Act. Thereafter in November 2006, the PWD informed that they would not pay the Central Excise duty to the appellant. Thereafter on 12.3.2007, a regular refund claim was filed by the appellant which has been rejected on the ground that the same has been filed beyond the period of one year prescribed under Section 11B of Central Excise Act, 1944.
2. Heard the learned counsel for quite some time. It was his submission that the correspondences as discussed above would show that the appellant was seeking refund all through. It is also his submission that appellant had requested the department to indicate whether consignee can claim the refund or they have to claim. He also submitted that the letter issued by PWD on 3.3.2006 informing Central Excise department to reimburse the amount to the appellant has to be treated as refund claim. He also relied upon the Larger Bench decision of Tribunal in the case of Poulose & Matthen vs. CCE reported in 1989 (43) E.L.T. 424 (Tri.-LB).
3. I have considered the submissions and perused all the records and the documents placed before me. I find that in this case the Bench made a specific query to the learned counsel to show anywhere in the correspondences made by the appellant to the department that there was a specific request to sanction refund of the amount paid and the learned counsel could not show the same to me. Seeking clarification whether refund can be claimed by the appellant or the consignee cannot be treated as a refund claim. It has to be noted that as early as 3.3.2006, PWD had written to Deputy Commissioner stating that they would not be paying the amount to the appellant and there was a delay in producing the certificate. The proper course for the appellant to follow was to file an appeal against the decision communicated to them by the Assistant Commissioner on 24.11.2005 stating that since they have not fulfilled the conditions under Notification No.108/95 they are not eligible for the refund. This was a decision communicated to the appellant, which could have been challenged and they did not do so. As early as 3.3.2006 PWD made it clear that they would not be paying the amount. A request by the third party or a customer to the department requiring the department to reimburse the amount of duty paid cannot be considered as refund claim at all. At this stage also the appellant had time to file refund claim since the clearances were from June 2012 onwards. They did not do so. There is no reason forthcoming as what the appellant was doing from 3.3.2006 or whereabouts till 12.3.2007 and why they did not file the refund claim. In any case, it is not the business of the Tribunal to find out the reason as to why there was delay in filing the refund claim. After considering all the records and documents placed before me, I find nowhere in all the correspondences made with the department by the appellant they had sought for refund of Central Excise duty and the correspondences between the appellant and the department cannot be considered as claim for refund. As already observed, there is not even a single line stating that I may please be granted refund of Central Excise duty. Under these circumstances the rejection of refund on the ground of limitation by the lower authorities cannot be faulted with. I am not going into the merits of the issue and of course both the lower authorities have not dealt with the same. I do not find any need to deal with the same. In the result, appeal is rejected.
(Order dictated and pronounced in open court) B.S.V MURTHY TECHNICAL MEMBER rv 4