Custom, Excise & Service Tax Tribunal
Pune I vs Volkswagen (India) Pvt. Ltd on 8 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: E/88634/2013
[Arising out of Order-in-Appeal No: PUNE-CX-001-APP-59-13-14 dated 21/06/2013passed by the Commissioner of Central Excise (Appeals), Pune I.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
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 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
Pune I
Appellant
Vs
Volkswagen (India) Pvt. Ltd.
Respondent
Appearance:
Shri Navneet, Addl. Commissioner (AR) for the appellant Shri Prakash Shah, Advocate for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 08/11/2013 Date of decision: 08/11/2013 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The Revenue has filed this appeal against Order-in-Appeal No. PUNE-CX-001-APP-59-13-14 dated 21/06/2013 passed by the Commissioner of Central Excise (Appeals), Pune I.
2. Vide the impugned order, the learned Appellate authority has allowed refund of excess duty paid by the respondent M/s. Volkswagen India Pvt. Ltd., Pune, second time by mistake on the ground that duty liability can be recovered only once on clearances of the goods and therefore, if duty is paid by mistake second time, refund should be of the payment of duty made wrongly the second time and the question of unjust enrichment would not arise as the appellant has not recovered duty from the customers.
3. The learned Additional Commissioner (AR) appearing for the Revenue submits that when the goods were cleared initially the bill was raised by the respondent on themselves as stock transfer whereas when the duty was paid second time, excise invoices were raised passing on the duty burden to the buyers of the goods. Therefore, the appellant was eligible for the refund of the duty paid first time.
4. The learned counsel for the respondent submits that first payment of duty was the legal discharge of duty as the same was towards clearance of the excisable goods. The second payment made was an error and therefore, what is claimed by way of refund is payment made second time. If no payment was made second time, refund could not be claimed at all. Therefore, the lower appellate authority is right in considering the payment made second time as the amount eligible for refund.
5. We have carefully considered the submissions made by both the sides. The claim for refund would arise only when excess payment of duty is made. In the present case, refund of duty has arisen when the payment was made the second time when the goods were cleared from the depot. The liability to pay excise duty arises when the goods are cleared from the factory. The appellant discharged duty liability during June to August 2011 when the goods were cleared from the factory and that is the legal discharge of duty. The subsequent payment, made erroneously, is not a payment of duty and the obligation to pay duty has already been fulfilled. Therefore, it is the second payment which needs to be considered for refund which the appellate authority has rightly considered. The argument of the Revenue that in respect of the second payment, the appellant has issued excise invoices to the customer and, therefore, the duty incidence has been passed on is not acceptable for the following reason: It is not the case of the Revenue that the appellant has passed on the duty incidence twice to the customers. No customer will pay duty twice for the same set of goods. Therefore, the question of unjust enrichment would not arise at all. On a similar matter, in the case of Cipla Ltd. vs. Commissioner of Central Excise 2013 (295) ELT 696, this Tribunal had occasion to consider refund of duty when duty was paid twice and in that case, the refund was allowed holding that the question of unjust enrichment will not apply when duty is paid twice but recovered only once from the customer.
6. In view of the above, we do not find any merit in the appeal filed by the Revenue and accordingly, the same is dismissed as devoid of merits.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 2