Custom, Excise & Service Tax Tribunal
M/S. Electropneumatics & Hydraulics ... vs Commissioner Of Central Excise, Pune-I on 5 January, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/552/10-MUM [Arising out of Order-in- Appeal No. PI/VSK/25/2010 dtd. 9/2/2010 passed by the Commissioner (Appeals), Central Excise Pune-I] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
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?
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M/s. Electropneumatics & Hydraulics (I) Pvt. Ltd. Pune
:
Appellant
VS
Commissioner of Central Excise, Pune-I
:
Respondent
Appearance
Shri. Rajeev D. Waglay, Advocate for the Appellant
Shri. V.K. Agarwal, Addl. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 05/01/2015
Date of decision 05/01/2015
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in- Appeal No. PI/VSK/25/2010 dated 9/2/2010 passed by the Commissioner (Appeals), Central Excise Pune-I, wherein the Ld. Commissioner appeal upheld the order of the adjudicating authority and disallowed the appeal of the appellant. The fact of the case is that appellant filed refund claim on 29/8/2008 for amount of Rs. 5,54,313/- against central excise duty wrongly paid in respect of clearance made to SEZ under letter of undertaking on the basis of CT 1/CT3. The show cause notice was issued proposing rejection of the refund claim under Section 11B, which was adjudicated by the rejecting the refund claim. Being aggrieved, the appellant preferred the appeal before the Commissioner (Appeals), who remanded the matter to the adjudicating authority. In denovo adjudication the original adjudicating has again rejected the refund claim vide order in original dated 24/9/2009 on ground of unjust enrichment. Being aggrieved with this order the appellant filed the appeal before the Commissioner (Appeals) which was rejected and the original order dated 24/9/2009 was upheld, hence the appellant is before me.
2. Shri. Rajeev D. Waglay, Ld. Counsel for the appellant submits that as regards the unjust enrichment appellant had submitted balance sheet as on 31/3/2008, statement of account from 1/4/2007 to 31/2/2008 and Chartered Accountant certificate dated 28/2/2009 certifying that payment made to Excise Department is included under head Account Receivable from Excise Department. It is his submission that all these documents were submitted to the original authority before denovo adjudication and nothing more could have been submitted. He submits that these documents clearly establish that incidence of duty, for which refund sought for, has not been passed on to any other person and that is the reason that refund amount is shown under the head of loan and advances. On the query from the bench that during the hearing before adjudicating authority held on 23/6/2009 the advocate undertook to submit balance sheet of 2008-2009 and the accounting treatment given to the amount claimed and invoices under reference in the books of account. He fairly submits that these documents not submitted earlier. He submits that if one more opportunity is given, all such documents will be submitted as on date of finalization the refund claim before the adjudicating authority.
3. On the other hand, Shri. V.K. Agarwal, Ld. Addl. Commissioner (A.R.) appearing for the Revenue reiterates the findings of the impugned order and submits that as regards the unjust enrichment the accounting procedure of the amount to be refunded has to be established not only in the books for the period when duty was paid but in all the subsequent years and till sanction of refund, the accounting treatment of refund amount has to be verified. He submits that hearing took place before the original authority on 23/6/2009 and at that time account position of the financial year 2008-09 was required to be verified and original authority has rightly demanded the balance sheet of 2008-09, which appellant failed to produce. Therefore in absence of such vital evidence the original authority had no option except to reject the refund claim on the ground of unjust enrichment and original authority has rightly done so.
4. I have carefully considered the submissions made by both the sides.
5. The issue involved in this case is limited to the test of unjust enrichment for sanctioning refund claim. On perusal of books of accounts of 2007-08 and CA certificate, it is clear that amount of refund is accounted for under head of loans and advances in the asset sides of the balance sheet. In my view if this treatment is given to the refund amount in the books of account, it is sufficient ground for establishing that the incidence of such duty has not been passed on. However this treatment of the amount reflecting in the year when the duty was paid but it should continue till the sanction of the refund claim. It is apparent from the order that despite undertaking by the advocate during the hearing the appellant has failed to produce the balance sheet for the year 2008-09 to the adjudicating authority. Therefore treatment of this amount in the books of account could not be known or ascertained by the adjudicating authority in absence of said documents. In view of the above facts, I am of the view that the matter needs to be remanded to the adjudicating authority. I therefore remand the matter to the original authority for re-consideration of refund claim only on the point of unjust enrichment by accepting balance sheet and Chartered Accountant certificate as on the date of sanction of refund claim. Needless to say that the appellant should be given sufficient opportunity for producing all these documents and also personal hearing. The appellant is directed to submit all the documents within a period of one month from the date of receipt of this order and adjudicating authority shall dispose of the refund claim application within a further period of one month. The appeal is disposed of in the above terms.
(Dictated in court) Ramesh Nair Member (Judicial) sk 5