Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Vikrant Tyres Ltd on 6 August, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/602/2004-DB [Arising out of Order-in-Appeal No. 88-2004- CE dated 27/02/2004 passed by Commissioner of Central Excise(Appeals) , Mangalore] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Commissioner of Central Excise, Customs and Service Tax MYSORE NULL S1-S2...VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Appellant(s) Versus Vikrant Tyres Ltd. Plant I, Krs Road, Metagalli, MYSORE - 571016 KARNATAKA Respondent(s)
Appearance:
Shri Pakshi Rajan, Asst. Commissioner(AR) For the Appellant Shri Lakshmi Narayanan, Advocate For the Respondent Date of Hearing: 06/08/2015 Date of Decision: 06/08/2015 CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 21936 / 2015 Per : ASHOK K. ARYA This appeal has been filed by the Commissioner of Central Excise, Mysore against the Order of Commissioner (Appeals), Mangalore wherein the Order-in-Original No.13/2002 dt. 26/02/2002 has been upheld. The Order-in-Original No.13/2002 dt. 26/02/2002 has been passed by the Assistant Commissioner of Central Excise, Mysore-I Division. Assistant Commissioner of Central Excise, Mysore-I Division vide his order finalized the provisional assessment under Rule 9(B) of Central Excise Rules, 1944 for the period of July 2000 to March 2001. Further vide his order, Assistant Commissioner of Central Excise makes a mention that the assessee becomes entitled to the differential duty of refund of Rs.10,95,429/-.
2. The respondent in the case is M/s. Vikrant Tyres Ltd. Mysore. The subject goods in the matter are pneumatic tyres, tubes and flaps (Chapter 40). In the facts, the appellant mentions that assessee was clearing excisable goods under stock transfer to various depots and C&F agents situated all over the country; the discounts were being given to the dealers/buyers by way of credit notes, after realization of sale proceeds and also confirming the achievement of targets fixed for eligibility of the discounts; as per the Boards instructions, when discounts were not readily known, provisional assessments were ordered by the Board for the period from July 2000 to Marcy 2001 regarding clearances made by the assessee under stock transfer to the depots.
3. The Department argues that the original adjudicating authority finalized the assessments based on the clearances made in respect of only 10 depots, though he should have considered the clearances made for all the depots by the assessee while finalizing the assessment.
4. The Department argues that the Commissioner (Appeals) also erred in upholding the method adopted by the original adjudicating authority in finalization of the provisional assessment. The Department further argues that for the refunds arising out of the finalization of provisional assessment, the test of unjust enrichment has to be applied.
5. The respondent viz. M/s. Vikrant Tyres Ltd. (now M/s. J.K. Tyres & Industries Ltd.) in letter Ref. No.C.Ex./09/PA2000-01 dt. 20/12/2012 addressed to the Superintendent of Central Excise, Metagalli West Range, Mysore has stated that they had cleared the goods to 10 depots from out of 14 depots and their assessments were finalized for the depots to which goods were cleared during that year; the said fact was mentioned in the Order-in-Appeal No.88/2004. The respondent further argues that the doctrine of unjust enrichment is not applicable to provisional assessment cases, when they are finalized and when any refund is due to the assessee. The respondent refers to the Boards Circular No.744/60/2003-CX dt. 11/09/2003 mentioning that the Departments appeal on the said issue was dismissed by the Honble Supreme Court in the case of CCE, Chennai Vs. T.V.S. Suzuki Ltd. [2003(156) ELT 161 (SC)].
6. The respondent has also referred to the following case laws in their support:-
a. Goetze (India) Ltd. Vs. CCE, Bangalore [2008(89) RLT (CESTAT-Ban.] b. Vinir Engineering Pvt. Ltd. Vs. CCE, Bangalore [2004(168) ELT 34 (Tri. Bang.)] c. Needle Industries (India) Ltd. Vs. CC&CE, Coimbatore [1998(101) ELT 286 (Tri.)] d. Nestle (India) Ltd. Vs. CCE, Bangalore [2000(117) ELT 376 (Tri.)]
7. With reference to the respondents submissions that they had cleared the goods to only 10 depots from out of 14 depots, the Deputy Commissioner(Review) addressed a letter C.No.IV/03/211/2004 Review/451 dt. 09/01/2013 to the Superintendent (AR) of the office of Commissioner (AR), CESTAT, Bangalore saying that in case of the assessee, there were 20 depots at the relevant period and not 14 depots as was mentioned in the Order-in-Appeal No.88/2004. Deputy Commissioner (Review) also says that, there was no evidence to confirm that there were sales only in respect of 10 depots during that period. He also confirmed in the above said letter dated 09/01/2013 that assessee had filed a refund claim of Rs.12,95,429/- and an amount of Rs.12,94,821/- was sanctioned vide Order-in-Original No.86/2002 and appropriated towards adjudication levies pending.
8. The Departments submissions do mention that there were 20 depots, but they have not given any confirmatory evidence regarding the stock transfer or the sale in respect of all 20 or 14 depots, when Order-in-Original considered stock transfer/sales in 10 depots for finalization of provisional assessment. It is pointed out that the assessee stated in their letter dt. 20/12/2012 addressed to the Superintendent of Central Excise, Metagalli West Range, Mysore that the goods were cleared to only 10 depots out of 14 depots. When the Department has not given any clear evidence to counter the statement of the assessee that sales were made to only 10 depots out of 14 depots, the Departments argument that sales of all the depots could have been considered cannot be examined further and will be termed as put up without any clear basis.
9. The Departments argument that doctrine of unjust enrichment would have been considered during finalization vide Order-in-Original dt. 26/02/2002 cannot be accepted when Honble Supreme Courts judgment in the case of CCE, Chennai Vs. T.V.S. Suzuki Ltd. [2003(156) ELT 161 (SC)] was accepted by the Board when the Departments appeal had been dismissed by the Honble Supreme Court. The Honble Supreme Court in this order dt. 06/08/2003 says that in case of the application for refund, the right of the appellant does not get defeated by the subsequent amendment made in sub-rule (5) of Rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the appellant had to be decided according to the law laid down by this Court in Mafatlal Industries Ltd. (supra) and would not be governed by the proviso to sub-rule (5) of Rule 9B. Consequently, the doctrine of unjust enrichment is not applicable to the present facts.
10. Considering the above discussion and analysis, we do not find enough force in the appeal filed by the Department. The appeal, therefore, is not sustainable in the eyes of the law of the Central Excise and it is hereby rejected accordingly.
(Operative part of this order pronounced in court on conclusion of the hearing) ASHOK K. ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER Raja.
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