Custom, Excise & Service Tax Tribunal
M/S. Afcons Infrastructure Limited vs Commissioner Of Central Excise & S.T., ... on 29 May, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/910/2008 (Arising out of OIA-KKS/193-194/DAMAN/2008 dated 18.04.2008, passed by Commissioner (Appeals) Central Excise, & S.T., Daman) M/s. Afcons Infrastructure Limited : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Daman : Respondent (s)
Represented by :
For Appellant (s) : Shri Keval Shah, Chartered Accountant For Respondent (s) : Shri Alok Srivastava, Authorised Representative For approval and signature :
Mr. P.K. Das, Honble Member (Judicial) 1 Whether Press Reporter 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? No 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 CORAM :
Mr. P.K. Das, Honble Member (Judicial) Date of Hearing : 08.05.2015 Date of Decision : 29.05.2015 ORDER No. A/10721 / 2015 Dated 29.05.2015 Per : Mr. P.K. Das;
The appellant filed this appeal against the rejection of refund claim, on the ground that they could not produce any evidence to substantiate that they have not passed the incidence of duty to the customers.
2. The relevant facts of the case, in brief, are that the appellants were engaged in the construction of Turbine Building, CCW Plant, Pump Houses etc. as per agreement with Nuclear Power Corporation Limited, a Government of India Enterprises. The appellant received fusion bonded Epoxy Coating of Re-Inforcing Steel Bar from M/s. PSL Corrosion Control Services Limited, Daman (in short PSL), who paid the Central Excise duty and cleared the said Epoxy Coated product to the appellant. There was a classification dispute, which was decided by the Tribunal vide order No. 190/2002-03 dated 28.11.2002, wherein it has been held that process undertaken by M/s. PSL does not amount to manufacture. By letter dated 12.09.2003, M/s. PSL informed that the appellant had paid the Central Excise duty and therefore, they are eligible to get the refund of duty under Section 11B of the Central Excise Act, 1944. Accordingly, the appellant filed refund claim for Rs. 20,45,807/-.
3. A show cause notice was issued proposing to reject the refund claim. The adjudicating authority rejected the refund claim on the ground that the appellant have not furnished any documentary evidence that the incidence of duty was not passed to other person. By the impugned order, the Commissioner (Appeals) upheld the adjudication order and rejected the appeal filed by the appellant.
4. Learned Advocate on behalf of the appellant submits that the appellant produced Chartered Accountant certificate, certifying that no part of the duty paid by the manufacturer has been reimbursed by the customer i.e. Nuclear Power Corporation Limited. He also submits that Nuclear Power Corporation Limited, by certificate dated 10.12.2003 confirmed that they have not reimbursed the excise duty to the appellant. He submits that the Commissioner (Appeals) erroneously proceeded on the basis that the appellant have not produced the costing of products. It is his submission that Chartered Accountant after examining the books of accounts certified that duty amount was not reimbursed by the customer. Hence, it is not the domain of the Central Excise authorities to ask for the costing of goods. He relied upon various decisions.
5. On the other hand, the learned Authorised Representative for the Revenue reiterated the findings of the Commissioner (Appeals). He submits that the appellant has not produced sufficient evidence that the incidence of duty was not passed on to the customers. It has been submitted that the appellant failed to furnish the books of accounts to substantiate that the element of duty was not included in the cost of materials and pricing of the goods. He relied upon the decision of the Honble Supreme Court in the case of CCE, Mumbai-II vs. Allied Photographic India Limited 2004 (166) ELT 3 (SC).
6. After hearing both the sides and on perusal of the records, I find that the manufacturer paid the duty under protest. They have requested the appellant to claim the refund as the duty element was borne by the appellant. The refund claim was rejected on the ground that the appellant had not furnished sufficient evidence that the incidence of duty was not passed on to their customers. It is seen from the records that the appellant produced Chartered Accountant certificate dated 27.4.2004, certifying that the appellant paid a sum of Rs. 20,45,807/- by way of excise duty on Fusion Bonded Epoxy Coating of steel bars against the excise invoices raised by M/s. PSL Corrosion Control Services Limited and confirmed that no part of the duty paid on the said products has been reimbursed by the customer Nuclear Power Corporation Limited. The Commissioner (Appeals) observed that the appellant have not submitted the details as to how they arrived at the pricing of the material at the time of bidding for the award of contract with their customer. He further observed that how the payment of excise duty made by the appellant was treated in computation of their pricing and in their books of accounts. I find that after examining the books of accounts, the auditor by certificate dated 27.4.2004 had certified that no part of duty paid by the appellant has been reimbursed by the customer. The genuinety and authenticity of the certificate was not doubted by both the authorities below. There is no material available on record to discard the Chartered Accountant certificate. Hence, in my considered view, there is no need to furnish the cost of material and pricing of the contract. It will be necessary in the case, when the Auditors certificate is not accepted as incomplete or any other reason.
7. The other aspect of this matter is that the expressions the applicant may furnish to establish, if read with the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person, in sub-Section(1) of Section 11B of the Central Excise Act, 1944, make it clear that the applicant is required to produce the evidence that the other person had not paid the duty amount to the applicant. In present case, the appellant discharged the burden by producing certificate dated 10.12.2003 from their customer namely, Nuclear Power Corporation Limited. For the purpose of proper appreciation of the case, the relevant portion of the said certificate is reproduced below:-
This is to certify that the contract for the Construction of Turbine Buildings, CCW Tunnels, External RCC Trenches and Tunnels, Chlorination Plant, DM Plant, Pump House, excluding CCW Pump house, Discharge Channels, Fresh/ Fire water reservoir and Misc. Structures at Tarapur Atomic Power Project -3&4 (Package-III Work) was awarded to M/s. AFCONS INFRASTRUCTURE LIMITED., Afcons House, 16, Shah Industrial Extate, Veera Desai Road, Azad Nagar (P.O.), Post Box No. 11978, Andheri (W), Mumbai 400 053, vide Work Order No. TAPP 3&4/Civil/9/00099. Dt. 16/10/1999 (letter Ref. No. TAPP-3&4/22000/Civil/CB/99/S/322 dated 16/10/99).
This is to confirm that we have not reimbursed any Excise Duty to the contractor M/s. AFCONS INFRASTRUCTURE LIMITED against the Excise Duty paid by them on the invoices of PSL CORROSSION CONTROLS LIMITED for fusion Bonded Epoxy Coating of Reinforcement Steel Bars, used by them in the said contract.
8. Nuclear Power Corporation Limited, a Government of India Enterprise had confirmed that they have not reimbursed any Excise Duty to the appellant against the excise duty paid on the invoices of the manufacturer. Thus, the other person in Section 11B(1), has certified that they have not reimbursed the duty. In such situation, in my considered view, there is no requirement to furnish the costing of product and pricing of contract, when the certificate of the other person, particularly a Government of India Enterprise, is found genuine. Hence, there is no reason to reject the refund claim on the ground of unjust-enrichment.
9. In view of the above discussion, impugned orders are set-aside. The appeal filed by the appellant is allowed.
(Order pronounced in the Court on 29/05/2015) (P.K. Das) Member (Judicial) .KL 2