Custom, Excise & Service Tax Tribunal
M/S Asiatic Colour Chem Industries Ltd vs Commissioner, Central Excise & Service ... on 8 April, 2015
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.E/10150/2015
[Arising out of OIA No.AHM-EXCUS-002-APP-092-14-15, dt.13.07.2014, passed by Commissioner (Appeals), Central Excise & Service Tax, Ahmedabad-II]
M/s Asiatic Colour Chem Industries Ltd. Appellant
Vs
Commissioner, Central Excise & Service Tax,
Ahmedabad-II Respondent
Represented by:
For Appellant: Shri Anand Mishra, Advocate For Respondent: Shri T.K. Sikdar, Authorised Representative For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL) Date of Hearing/Decision: 08.04.2015 Order No. A/10308 / 2015, dt.08.04.2015 Per: P.K. Das
1. The relevant facts of the case, in brief, are that the Appellant, a 100% EOU, engaged in the manufacture of S.O. Dyes and Dye Intermediates. The Appellant deposited Rs.12,21,639.00 under the Education Cess and Secondary & Higher Cess head and utilized the said amount under the head of Basic Excise Duty at the time of clearance of goods into DTA during the period July 2008 to January 2009. The Adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty. Commissioner (Appeals) allowed the appeal with finding that the Appellant may file refund of Rs.12,21,639.00 paid under the head Education Cess and SHE Cess and they should deposit the same under the accounting head of BED.
2. The learned Advocate for the Appellant submits that the Department should have refunded this excess amount paid under Education Cess and SHE Cess as per CBEC Circular No.7/93-CX.6, dt.23.04.1993. He relied upon the decision of the Tribunal in the case of M/s Pepsico India Holding Pvt. Ltd Vs CCE Allahabad 2010 (255) ELT 299 (Tri-Del). He also relied upon the decision of the Tribunal in the case of M/s Gaula Closure (India) Pvt. Ltd Vs. Commissioner of Central Excise, Daman 2008 (228) ELT 39 (Tri-Ahmd).
3. On the other hand, the learned Authorised Representative for the Revenue submits that there is no provision or Board Circular in respect of transfer of amount from Education Cess and SHE Cess to BED. He submits that the Circular dt.23.04.1993 is applicable in the case of utilization of credit balance of SED in PLA subsequent to abolition of SED. He also submits that the decision of the Tribunal in the case of M/s Pepsico India Holding Pvt. Ltd (supra) is in respect of transfer of BED and SED in PLA.
4. After considering the submissions of both the sides and on perusal of the records, we find force in the submission of the learned Authorised Representative for the Revenue. The Boards circular dt.23.04.1993 is in respect of transfer of credit balance lying in one minor head to another minor head. In that Circular, Board has considered the question of utilization of credit balance of SED lying unutilized in PLA consequent to abolition of SED vide Notification No.178/86-CE, dt.1.3.1986.
5. In the circular, it is clarified that the assessee desiring to transfer the unutilised credit balance of SED to the head of account of BED in his PLA may make an application in quintuplicate indicating the details to Range Superintendent, who after necessary checks and verifications will permit the transfer of the credit balance under SED to BED after indicating proper head of account. It is also clarified that one copy of the application bearing the Range Officers endorsement permitting the transfer shall be forwarded to the Chief Accounts Officer to as to enable him to carry out necessary reconciliation/adjustments in his accounts.
6. In the present case, we agree with the findings of the Commissioner (Appeals) that to regularize the payment under their respective accounting head, the Appellant should claim the refund of excess paid Education Cess and SHE cess and the Appellant should deposit the same under the accounting had of Basic Excise Duty. The decision relied upon by the learned Advocate in the case of M/s Pepsico India Holding Pvt. Ltd (supra) is for transfer of amount in PLA from BED to SED. Single Member Bench decision of this Tribunal relied by learned Advocate in the case of M/s Gaula Closure (India) Ltd (supra) had not considered the Board circular. The learned Advocate submits that they have filed refund claim of excess amount paid under Education Cess and SHE Cess. We direct the Adjudicating authority to consider the issue in accordance with law.
7. In view of the above discussion, we do not find any reason to interfere the order of Commissioner (Appeals). The appeal filed by the Appellant is rejected with the above observations.
(Dictated & Pronounced in Court) (H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial) cbb 4