Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (I), Mumbai vs Vardhaman Acrylics Ltd on 6 August, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. C/S/330/09 APPEAL Nos. C/180/09 C/294 & 295/09 (Arising out of Order-in-Appeal No. 351, 352/2008/MCH/ AC/Gr.VA/2007-08 dated 30.12.2008 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. A.K. Srivastava, Member (Technical) ======================================================
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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Commissioner of Customs (I), Mumbai Appellant Vs. Vardhaman Acrylics Ltd. Respondent AND 1) Vardhaman Acrylics Ltd. Appellant 2) Vardhaman Acrylics Ltd. Vs. Commissioner of Customs (I), Mumbai Respondent Appearance: Shri Manish Mohan, Authorised Representative (SDR), for Revenue Shri S. Murthy, Advocate, for assessee CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. A.K. Srivastava, Member (Technical) Date of Hearing: 6.8.2009 Date of Decision: 6.8.2009 ORDER NO................................. Per: P.G. Chacko, Member (J),
After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dismissing the stay application, we take up the appeal.
2. The appeal is against the appellate Commissioner's order-in-appeal Nos. 351&352/2008/MCH/AC/Gr.VA/2007-08 dated 30.12.2008. We are told that, against the same order, the assessee also has filed two appeals, viz. C/294/09 and C/295/09. The assessee's appeals do not figure in today's cause-list. We have called for both the appeals. On a perusal of the records, we find that there is a common ground of appeal for the assessee and the department (appellant in appeal No. C/180/09). This ground is to the effect that the appellate Commissioner exceeded his jurisdiction under Section 128 of the Customs Act by remanding the case to the original authority. In the circumstances, we find that all these three appeals have got to be disposed of in one go.
3. Both the learned DR for the Revenue and the learned counsel for the assessee have submitted that the Commissioner (Appeals) should not have remanded the case to the lower authority. Instead, he should have disposed of the appeals on merits. After considering this plea, we have once again perused the order passed by the Commissioner (Appeals), which reads as under:-
"In view of the foregoing, and after going through the case records it appears that;
(1) The amount of Revenue Deposit which was claimed as refund after finalisation of provisional assessment has been shown in the Balance Sheet consecutively from 1998 to 2007-08 (refer Auditor's Certificate dated 04.12.2008). The amount is shown as Recoverable under the head "Balances and Deposits" in the schedules of "Current Assets, Loans & Advances" forming part of the audited Balance Sheet.
(2) The amount has not been charged to any revenue expenses or has not been reflected as depreciation in the Profit and Loss account of the Company. It appears that the bar of unjust enrichment is not applicable to the appellant and that the burden appears not to have been passed on to their customers.
(3) The Revenue deposit was taken when their assessment was provisional, and since there was no change on the finalisation of the assessment, it appears that the refund of the same cannot be denied.
The impugned orders are set aside in view of the submissions of the appellant.
The proper officer will take note of all the evidences in accordance with law and thereafter following principles of natural justice, pass speaking order on grounds of unjust enrichment."
4. Obviously, the learned Commissioner (Appeals) chose to pass an open remand order directing the lower authority to pass a speaking order on grounds of unjust enrichment by following the principles of natural justice. The appellate authority chose to do so, however, after recording a finding earlier in its order to the effect that the bar of unjust enrichment is not applicable to the appellant and that the burden of duty was apparently not passed on to their customers. What emerges from this discussion of ours is a state of inbuilt contradictions and inconsistencies in the appellate Commissioner's order. We have no option, in this scenario, other than remanding the case to the learned Commissioner (Appeals) for fresh decision on all the issues with better application of mind. Accordingly, we set aside the impugned order and allow these appeals by way of remand. Needless to say that the appellants should be given a reasonable opportunity of being heard.
(Pronounced in Court) (A.K. Srivastava) Member (Technical) (P.G. Chacko) Member (Judicial) tvu 1 5