Custom, Excise & Service Tax Tribunal
M/S Indra Aluminium Pvt. Ltd vs Cce Mumbai I on 31 May, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1473/09 Mum
(Arising out of Order-in-Appeal No. SB/55/Th-II/09 dated 23.09.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai I)
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?
M/s Indra Aluminium Pvt. Ltd.
:
Appellant
Versus
CCE Mumbai I
Respondent
Appearance Shri Jayesh Gogri, C.A. for Appellants Shri S.S. Katiyar, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 31.05.2011 Date of Decision : 31.05.2011 ORDER NO.
Per : Ashok Jindal The appellant is in appeal against the impugned order wherein the Commissioner (Appeals) has set aside the order of sanctioning the refund claim to the appellant on the ground that the appellant has failed to discharge their liability of bar of unjust enrichment.
2. Facts of the case are that the appellant is a manufacturer of Metallised Plastic films i.e. aluminium coated polypropylene films. The appellant filed a classification list to classify the product under Chapter 15A (2) where the rate of duty is nil but the said classification was not accepted by the department and the product was classified under Tariff item No. 68. Accordingly, the appellant paid the central excise duty during the period from 7.10.85 to 14.11.85 but filed an appeal challenging the classification under Tariff Item No. 68 before the Commissioner (Appeals), who allowed the appeal by classifying their product under Tariff Item 15A(2). In pursuant to that, the appellant filed a refund claim of Rs.40,500/- of duty paid during the period 7.10.85 to 14.11.85 and Rs.914.50 being unutilized lying in the PLA account. The said refund claim was sanctioned by the adjudicating authority on 4.6.2004. The said order was reviewed by the Commissioner on 03.06.2005 and an appeal was preferred before the Commissioner (Appeals) who set aside the adjudication order sanctioning the refund claim and asked the appellant to pay the amount erroneously refunded to him. Aggrieved by the said order, the appellant is before me.
3. Shri Jayesh Gogri, learned Chartered Accountant appearing on behalf of the appellant submits that the order of review has been passed on 8th June, 2005 which is beyond the period of one year of the adjudication. Therefore the impugned order is liable to be set aside. He further submitted that the impugned order is liable to be set aside on the ground that the appellant was not given a reasonable opportunity to present their case. He also submitted that in this case they filed a refund claim in the year 1985-86 but their documents were lost by the department. Thereafter, duplicate file was reconstructed and the refund claim was sanctioned on the direction of the Honble High Court of Bombay only on 04.06.2004 i.e. after almost 19 years. The refund claim has been denied by the lower appellate authority on the ground that the commercial invoices were not duly signed by the appellant and Chartered Accountant Certificate issued only at the request of the appellant. It was also observed by the Commissioner (Appeals) that no other documents have been produced by the appellant, therefore refund claim was rejected. He prayed that in that event matter be sent back to the Commissioner (Appeals) to reconsider the refund claim and the appeal be allowed.
4. On the other hand, Shri S.S. Katiyar, learned SDR submitted that the adjudication order was passed on 04.06.2004 and the same was reviewed by the Commissioner on 03.6.2005 which can be seen from the review order i.e. within one year of the order of the adjudication so the review order is within the limitation period on that ground the appeal fails. He further submitted that he has no objection if the matter is remanded back to the Commissioner (Appeals) to examine the issue afresh.
5. Heard and considered.
6. After examining the submissions made by both the sides, I find that the adjudication order passed on 04.06.2004 and the same was reviewed by the Commissioner on 03.06.2005 which is apparent on record therefore, I hold that the order has been reviewed within one year of the adjudication and the appeal filed before the Commissioner (Appeals) by the Revenue is within the limitation period. This view has been taken by the Tribunal in the case of CCE Chennai vs. Standard Pencil Pvt. Ltd. 2004 (170 (ELT) 151 (Tri. Larger Bench). Now I come to the issue whether the appellant has been heard properly by the Commissioner (Appeals) or not. As both the sides have no objections to remand the matter, the appeal is remanded back to the Commissioner (Appeals), with direction to examine the matter afresh after giving reasonable opportunity to the appellant to present their case and after examining the available records to pass an appropriate order. The appellant is also directed to produce a copy of this order before the Commissioner (Appeals) and shall co-operate with him to examine the case to pass an appropriate order.
7. It is pertinent to mention that as the matter relates to refund claim of the year 1985, the Commissioner (Appeals) shall dispose of the matter within one month of the receipt of this order. With these observations the impugned order is set aside and the appeal is allowed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 5