Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nasik vs Jyoti Structures Ltd on 17 November, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL Nos. E/1144 & 1145/03 (Arising out of Orders-in-Appeal No. CEX.XI/JMJ/11 & 8/916/ NSK/APPEAL/2003 dated 22.1.2003 passed by Commissioner of Central Excise & Customs (Appeals), Nasik) For approval and signature: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. K.K. Agarwal, 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 Central Excise, Nasik Appellant Vs. Jyoti Structures Ltd. Respondent Appearance: Shri N.A. Sayed, Authorised Representative (JDR), for respondent None for respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. K.K. Agarwal, Member (Technical) Date of Hearing: 17.11.2008 Date of Decision: 17.11.2008 ORDER NO................................. Per: K.K. Agarwal, Member (T),
These are two appeals filed by the Revenue. The brief facts of the case are that the respondents, M/s. Jyoti Structures Ltd., were manufacturing parts of transmission tower for their customer, M/s. Power Grid Corporation of India Ltd., on job work basis and paying duty accordingly. Subsequently, the respondents discovered that the value determined by them for the purpose of duty was incorrect, as while arriving at the cost of steel used in the manufacture of transmission parts, the cost of the steel has been taken as Rs.14,000/- PMT whereas the actual cost was Rs.7,000/- PMT. They have therefore paid excess duty and accordingly submitted refund claims for two different periods for Rs.39,790/- and Rs.3,31,610/- respectively. These refunds claims were rejected by the original authority on the ground that the respondents could not produce any documentary evidence to show that the cost of steel was Rs.7,000/- only and not Rs.14,000/- as taken by them and further on the ground that since the duty was already passed on to their customers and recovered from them, it will amount to unjust enrichment and therefore the refund cannot be sanctioned.
2. The respondents filed an appeal against the above order and the Commissioner (Appeals) has upheld the order of the lower authority on the ground of unjust enrichment. The Commissioner (Appeals) has, however, not given any finding as regards the valuation of the goods as to whether the cost of steel was actually Rs.7,000/- PMT and not Rs.14,000/- PMT as claimed by the respondents. The Revenue in appeal has contended that since the Commissioner (Appeals) has not given any finding on the valuation of the goods, the order is liable to be set aside on that count. The Revenue, however, does not dispute the finding on the aspect of unjust enrichment.
3. We have considered the submission. We find that the Commissioner (Appeals), while arriving at the conclusion that refund is to be credited to the Consumer Welfare Fund on the ground of unjust enrichment, has not given any finding on the value of the goods and has just mentioned about the respondents' claim that such value was based on the accounts of the customer. No findings have been given on the same. In view of the same, the matter is required to be remanded back to the Commissioner (Appeals) to give findings on the value at which the duty was required to be paid and is accordingly remanded for that purpose only. The denial of refund on the ground of unjust enrichment is being upheld.
4. The appeals are allowed by way of remand.
(Pronounced in Court) (P.G. Chacko) Member (Judicial) (K.K. Agarwal) Member (Technical) tvu 1 2