Custom, Excise & Service Tax Tribunal
M/S. Orissa Construction Corpn. Ltd vs Commr.Of Central Excise, Customs & on 20 April, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Excise Appeal No.-190/2011
(Arising out of the Order in Appeal No. 71/CE/B-I/2010 dated- 28.12.2010 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, BBSR)
SRI S.K. GAULE, HONBLE 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?
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 His Lordship wishes to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
M/s. Orissa Construction Corpn. Ltd.
APPELLANT(S)
VERSUS
Commr.of Central Excise, Customs &
S. Tax-BBSR-I
RESPONDENT(S)
APPEARANCE
Sri B. Panda, advocate & Sri B.B. Sahu,
Advocate
FOR APPELLANTS
Sri S.Chakraborty, A.C. (A.R.)
FOR THE RESPONDENTS
CORAM:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DATE OF HEARING : 20.04.2012 Date of Pronouncement:
ORDER NO.
Per SRI S.K. GAULE
Heard both sides.
2. The appellant a Govt. of Orissa undertaking, filed a refund claim of pre deposit for an amount of Rs.50,000/- vide their letter No. OCE/CE/15438 dated 21/11/1997 against the order in appeal No. . 71/CE/B-I/2010 dated- 28.12.2010 Dated 28/12/10 whereby the Ld. Commissioner (Appeal) has upheld the lower adjudicating authoritys order and rejected the appeal of the appellant.
3. Briefly stated facts of the case are that the appellant were engaged with M/s. NALCO Project at Damanjuri for fabrication and erection of steel structure. The said structure were held to be dutiable by the Commissioner (then Collector) and a demand of Rs.1,07,524/- was confirmed against the appellant and penalty of Rs.1,07,000/- was imposed against the appellant. The appellant challenged the same before the Tribunal. This Tribunal vide order No. 90/89-B-I dated 26.04.89 ordered the appellant to deposit an amount of Rs.50,000/- pending decision of the appeal. The Tribunal vide No. E-1052/97-B dated 29.051997 allowed the appeal of the appellant and set aside the order of Commissioner. Consequently, the appellant filed a refund claim vide their letter No. OCE/CE/15438 dated 21.11.97 for pre deposit of Rs.50,000/-. However, the appellant did not produce the copy of the challan vide which pre deposit was made. The refund claim was rejected on the ground that the appellant could not produce proof regarding the said amount of Rs.50,000/-. The appellant moved the Honble High Court of Orissa. The Honble High Court vide OJC No. 13293 of 2001 dated 20/4/2010 ordered for consideration of refund application within a period of Three months in accordance with law on production of the copy of the said challan or an authenticated copy of the same to be obtained from CESTAT, Kolkata. Thereafter the refund was granted to the appellant on production of the copy of TR-6 challan dated 11/6/2010. The appellant pleaded for interest on delayed payment of refund. The lower adjudicating authority did not grant the refund. Aggrieved by the same the appellant filed appeal before Commr. (Appeal) who in turn rejected the appeal filed by the appellant. Hence the appeal.
4.1 The contention of the appellant is that they filed a refund claim on 21/11/1997. The contention is that in response to Superintendents letter dated 28.01.1998 they wrote to Assistant Commissioner stating that they are unable to produce the document, original copy of the challan. However, they undertook to indemnify in the event of payment of this amount being made to any third party on the strength of the original challan.
4.2 The contention of the appellant is that though the department has taken the stand of non-availability of original challan, however, in counter furnished by the Asst. Commissioner (Law) before the Hon'ble High Court in pursuance to OJC No.13293 of 2001 they have admitted the receipt of the said amount conditionally against the stay order and also furnished the copy of challan along with the letter dated 10.7.89 to the Hon'ble High Court as well as with the notice to revenue. The contention is that the amount was ultimately refunded to the appellant on 28.6.2010 therefore, the claim of interest made by the appellant from the date of deposit till 28.6.2010 may be directed for payment. In support of their contention the appellant placed reliance on this Tribunals decision in the case of Jay Engineering Works Ltd. vrs. Commissioner of Central Excise, Hyderabad 203 (158) ELT 1718 (Tri-Bangalore) wherein it was held that the TR-6 challan for pre-deposit compliance made were lost and destroyed and payment to be effected following the procedure of Indemnity bond given in cash account. The contention is that department should not have waited for the original copy of challan without giving the chance for executing indemnity bond as submitted above on two occasions i.e. on 18.9.1998 and 17.2.1999. The appellant also placed reliance on Bharat Heavy Electrical Ltd. Vrs. Commissioner of Central Excise, Meerut 2002 ELT 591 (Tri.- Delhi) wherein it was held that the entitlement for refund would arise when the appeal was finally disposed of in favour of the appellant by the Tribunal and in this case since the appeal was allowed in favour of the appellant as submitted above the entitlement for refund accrued then. They also placed reliance on Honble Bombay High Courts decision in W.P. 5041/95 in the case of SUVIDHE Ltd. vs. Union of India, wherein Honble High Court has held the amount deposited in pursuance to filing of appeal was pre-deposited amount under section 35(F) in stead of section ll(B) and such amount is bound to be refunded when appeal is allowed with consequential relief and their lordships, were pleased to grant interest @ 15%, the contention is that in the circular/instruction No.275/37/2000-CX-8A dated 2.2.2002 the Central Board of Excise and Customs clarified in paragraph-3 of the notification that a simple letter from the person who deposited the amount along with the attested copy of the appeal order and challan copy to be addressed to the Asst. Commissioner/ Deputy Commissioner of central Excise will be suffice for the purpose of claiming refund.
4.3 The contention is that the obstinate character of the Revenue may be looked into. The amount has been retained for about 14 years after the appeal has been disposed of in favour of the Appellant Corporation vide order dated 29.5.97 and for 20 years from 23.06.89 the date of depositing the amount in pursuance to stay order. Therefore the interest @ 15% and interest on interest as decided in the case of Sandvic Asia Ltd. vrs.CIT AIR 2006 SC 1223 be granted.
5.1 The contention of ld.A.R. is that the appellants vide their letter No.OCC/CE/15438 dated 21.11.1997, filed a refund claim of Rs.50,000/-(Rupees Fifty Thousand only) deposited vide TR-6 Challan dated 23.06.1989 on the ground that the appeal has been decided in their favour by the Tribunal. The contention is that the Appellant did not submit TR-6 challan with the application for refund which is evident from the correspondence made by the appellant vide their letter dt.22.5.1999 and 07.02.2000 wherein the appellant admitted that they did not have original or copy of the said TR-6 challan. The appellant vide their letter dated 31.10.2000 had also admitted that they did not have any copy of such challan or photocopy, this fact has been recorded by the ld.Commissioner(Appeals) in para 3 of his order. The jurisdictional Deputy Commissioner rejected the refund claim for failure to produce any proof regarding payment of the said amount of Rs.50,000/-(Rupees Fifty Thousand only).
5.2 The contention is that the appellant field a writ petition before the Honble High Court of Orissa and the Honble High Court vide OJC No.13293 of 2001 dated 20.04.2010 ordered for consideration of the refund claim within a period of 3(three) months in accordance with law on production of the said challan or authenticated copy of the same to be obtained from the CESTAT, Kolkata. In pursuance of the order dated 20.04.2010 the appellant on 11.06.2010 produced the original copy of the said TR-6 challan dated 23.06.1989 and thereby refund was sanctioned by the department by order dated 28.06.2010 well within 3(three) months. The contention is that during the entire proceedings the appellant at no stage could produce documentary evidence that they had submitted the original or authenticated or attested copy of the said TR-6 challan before the department for sanction of refund in time before 11.06.2010. The ld.A.R. also reiterated the findings of the ld.Commissioner(Appeals).
6.1 I have carefully considered the submissions and perused the record. I find that ld.Commissioner(Appeals) rejected the appeal of the appellant filed for interest on refund of pre-deposit of Rs.50,000/-(Rupees Fifty Thousand only) vide the impugned order where it has been held as under :-
5. I have carefully gone through the case record and the submissions made in the personal hearing. In the present case the appellant made a pre-deposit of Rs.50,000/- and such a deposit is not a duty. Therefore the provisions of Section 11BB of CEA are not applicable for return/refund of such a deposit. The appellant made an application for refund vide their letter OCC/CE/15438 dtd.21.11.97. But the appellant had not enclosed the copy of T.R.-6 Challan in which he was deposited Rs.50,000/-. This fact has not been disputed by the appellant. The appellant was requested several times to provide a copy of the challan but, they failed to do so, and vide their letter No.1940-OCC/CE/31/77 dtd.17.02.99 they have stated that, the challan was not available.
6. For claiming of refund of any amount, it is the responsibility of the claimant to provide evidence that, such amount has been paid to the Government and TR-6 Challan copy is the evidence of such payment in Central Excise Transactions. In the present case, on perusal of the order dated 20.12.2000 of the Deputy Commissioner of Central Excise & Customs Rayagada it is noted that 4 copies of challans are used to deposit an amount, out of which 2 copies are meant for the appellant. One copy admittedly sent to CESTAT and another one copy should have been retained by the appellant as a proof of payment. But even after several requests made by the Department, the appellant declined to furnish the proof of payment of Rs.50,000/- informing that they do not have any copy of the challan or photo copy. Having not submitted such evidence, the appellant has not complied with the responsibility, and for that matter can not blame the Department. In a refund case, burden to proof the fact along with material evidence lies on the appellant making a refund application and not with the Department.
7. Board vide its Circular F.No.275/37/2K-CX. 8A, dated 2-1-2002 (although at a subsequent period) emphasized such a requirement. The relevant portion of the Circular is the following:
.In order to attain uniformity and to regulate such refunds it is clarified that refund applications under Section 11B(1) of the Central Excise Act, 1944 or under Section 27(1) of the Customs Act, 1962 need not be insisted upon. A simple letter from the person who has made such deposit, requesting the return of the amount, along with an attested Xerox copy of the order-in-appeal or CEGAT order consequent to which the deposit made becomes returnable and an attested Xerox copy of the Challan in Form TR6 evidencing the payment of the amount of such deposit, addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs, as the case may be, will suffice for the purpose. All pending refund applications already made under the relevant provisions of the Indirect Tax Enactments for return of such deposits and which are pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be processed as such. Similarly, bank guarantees executed in lieu of cash deposits shall also be returned.
8. The pre-deposit was made as per the Order of CESTAT and, it is the responsibility of the appellant to preserve a copy of T.R.-6 Challan for future requirement. The appellant had not done so and attempted to shift the responsibility to the Department stating the Department should trace the Challan. This is not called for. Subsequently the appellant had traced the Challan from the CESTAT and obtained a copy of it and produced it before the Assistant Commissioner on 11.6.2010. They could have done this exercise of obtaining a copy of the TR-6 Challan from CESTAT when they initially filed the refund claim in the year 1997, but entered into unnecessary correspondences; even went to Honble High Court on a writ.
8. In fact, the copy of the challan could only be submitted on the 11.06.2010 for considering the claim of refund by the Department. As such it can be fairly concluded that even the appellant had filed a refund claim earlier, the same did not accompany with the proof of payment and could not be treated as a valid claim lodged and for that reason the refund was rejected. The refund application is now treated as complete in all respect and filed on 11.06.2010, the date when the appellant has been able to show the proof by producing the copy of relevant challan. There is no time limit in claiming a refund in respect of pre-deposit. The refund has been granted by the sanctioning authority well within three months of its filing, where no interest is payable under law. As such the order of the Honble High Court dated 24.04.2010, requiring the department to return the amount of Rs.50,000/- in accordance with law is fully complied with.
10. I draw support from the order of Honable Cestat in the case of ILPEA PARAMOUNT LTD.; 2005 (188) E.L.T. 523 (Tri.Del.) wherein CESTAT had observed that interest could only be given provided the refund is not sanctioned within three months from the date of providing all the documents required including the TR-6 Challan evidencing the payment of pre-deposit. Relevant portion is given below.
I have considered the submissions of both the sides. Admittedly the application for refund of the amount deposited by them, as per Stay licants (sic) only on 5-6-2002. No doubt the Central Board of Excise & Customs has mentioned in its letter dated 2-1-2002 that no formal application under Section 11B(1) of the Central Excise Act is required for the refund of pre-deposit amount. The Board, has however, further mentioned that a simple letter from the person who has made such a deposit requesting for return of the amount along with an attested Xerox copy of the Order-in-Appeal or Tribunals Order consequent to which deposit made become returnable and an attested Xerox Copy of the Challan in form TR 6 evidencing payment of duty has to be submitted to the Department. In absence of such documents, the refund of amount of pre-deposit cannot be undertaken by the Department. These documents have not been furnished by the appellants immediately after the Tribunal has allowed their Appeal i.e. on 23-4-2002. These papers have been given possibly with the refund application on 5-6-2002 only. The Supreme Court decision as well as Boards Circular dated 8-12-2004 nowhere provides that the interest will be admissible to the claimant if the amount of pre-deposit is not refunded within three months of the Final Order passed by the Tribunal. The provisions relating to interest are contained in Section 11BB of the Central Excise Act only, according to which the interest is payable if the refund is not made within three months of the receipt of the application. As in this case the application for refund has been made on 5-6-2002, the appellants are eligible for the interest for the period from 5-9-2002 to 4-10-2002 only. The Appeal
11. In view of foregoing, the appeal is rejected. 6.2 Undisputedly the appellant could not produce copy or authenticated copy or original challan in support of providing evidence of having deposited the amount prior to 11.06.2010 on the date they received the TR-6 challan in pursuance to Honble High Courts order in OJC No.13293 of 2001 dated 20.04.2010. The relevant portion is re-produced herein:-
5. After hearing learned counsel for the parties, this Court feels that ends of justice and equity will be better served if the Writ Petition is disposed of giving liberty to the petitioner to file a petition for getting return of the original documents filed by the petitioner before opposite party No.6. If such a petition is filed, opposite party No.6 shall do well to return the original documents on being substituted by authenticated Xerox copies. After receiving the original documents, if the same are produced before opposite party No.1, the said authority shall do well to return the amount of Rs.50,000/- payable to the petitioner in accordance with law as expeditiously as possible preferably within a period of three weeks from the date of production of the original documents.
6.3 Admittedly the appellant did not produce the document on a date prior to the date of its receipt i.e. 11.06.2010 and the jurisdictional Dy.Commissioner has sanctioned the refund within 3(three) months from the said date. The interest accrues only after 3(three) months as per section 11BB. Therefore I do not find any reason to interfere with the ld.Commissioner(Appeals)s order which is upheld and the appeal is dismissed.
(Pronouned in the open court on 22.06.2012.) Sd/ (S.K.GAULE) MEMBER(TECHNICAL) sm Excise Appeal No.-190/2011 10