Custom, Excise & Service Tax Tribunal
Sudarshan Consolidated Limited vs Jammu &Amp; Kashmir on 30 August, 2018
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Appeal No. E/55991/2014
Customs, Excise & Service Tax Appellate Tribunal
SCO 147-148, SECTOR-17-C, CHANDIGARH-160017
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Appeal No. E/55991/2014
(Arising out of JNK-EXCUS-000-APP-262-13-14 dated 30.09.2013 passed by the
Commissioner (Appeals) of Central Excise-JAMMU & KASHMIR)
M/s Sudarshan Consolidated Limited : Appellant (s)
Vs
CCE & ST- Jammu & Kashmir : Respondent (s)
Represented by:
For Appellant (s) : Ms. Asmita Naik, Advocate For Respondent (s): Shri Tarun Kumar, AR CORAM :
Mr. Ashok Jindal, Hon'ble Member (Judicial) Mr. Anil G. Shakkarwar, Hon'ble Member (Technical) Date of Hearing/Decision: 30.08.2018 ORDER No.A/63094 / 2018 Per : Mr. Ashok Jindal The appellant is in appeal against the impugned order.
2. The facts of the case are that, the appellant was engaged in the manufacture of Pesticides, Insecticides, Funcicide & Herbicides falling under Chapter 38 of the First Schedule to the Central Excise Tariff Act, 1985. As the appellant was located in the State of Jammu & Kashmir, they were availing benefit of exemption Notification No. 56/2002-CE dated 14.11.2002. The appellant were clearing their goods to their customers inclusive of outward freight charges by them. After exhausting their Cenvat credit account they paid duty through PLA inclusive of freight charges. To re-credit the same and re-credit was allowed to the appellant for the period February 2008 to October 2008. Thereafter, the show cause notice was issued by invoking extended period of limitation to deny 2 Appeal No. E/55991/2014 the self credit of duty paid on freight portion form the assessable value as the same was not payable by the appellant. Therefore, excess refund claim by the appellant is recoverable. The matter was adjudicated, demand on account of erroneous refund was confirmed and the said order was challenged before the ld. Commissioner (Appeals) but hold that extended period is not invokable therefore, demand for the period February 2008 to October 2008 was dropped. Against the said order, the appellant is in appeal.
3. Ld. Counsel for the appellant submits that initially they filed the refund claim and the same was sanctioned to them as outward freight forms a part transaction value and therefore, they have correctly paid the duty and refund claim was rightly sanctioned. In that circumstance, without challenging the said refund claim in appeal, show cause notice cannot be issued under Section 11A of the Act as held by Hon'ble High Court of Gauhati in the case of CCE, Shillong vs. Jellalpore Tea Estate - 2011 (268) ELT 14 (Gau). In that circumstances, demand of refund claim sanctioned to them cannot be open for challenge.
4. On the other hand, ld. AR submits that the appellant has deliberately paid duty on the transportation charges which form a part of assessable value, to avail inadmissible refund, in that circumstances, extended period of limitation is invokable.
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Appeal No. E/55991/2014
5. Heard the parties, considered the submissions. After hearing the contentions of both sides, we find that the issue emerges before us is that, as refund claim was sanctioned to the appellant, and without challenging those assessment orders of refund claims sanctioning thereof, can be challenged by way of issuance of show cause notice under Section 11A of the Act or not. The said issue is exempted by the Hon'ble High Court of Gauhati in the case of Jellalpore Tea Estate (supra), wherein the Hon'ble High Court observed as under:-
"13. That apart, the Assistant Commissioner of Central Excise, Silchar had passed a final order in favour of the assessee on 29-4-2002 and admittedly, this order was revisable under Section 35-E of the Act. For reasons best known to the Commissioner of Central Excise, Shillong no action was taken to have the order of the Assistant Commissioner revised or set aside. Having failed to avail of the statutory remedy available under the Act, the Revenue sought to circumvent the law (as it were) by taking recourse to Section 11A of the Act. In our opinion, this was clearly impermissible inasmuch as what is required to be done in a manner prescribed by law, ought to be done in that manner only or not at all."
Therefore, we hold that provisions of Section 11A of the Act are not applicable to the facts of this case. Accordingly, demand against the appellant is not sustainable.
6. In view of the above analysis, we allow the appeal filed by the appellant.
(Dictated & pronounced in the Court)
(Anil G. Shakkarwar) (Ashok Jindal)
Member (Technical) Member (Judicial)
G.Y.