Custom, Excise & Service Tax Tribunal
M/S Mahanagar Gas Ltd vs Cce, Mumbai Ii on 11 January, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI. APPEAL NO. E/596/07-Mum (Arising out of Order-in-appeal No.AT/21/M-II/2007 dated 5.2.2007 passed by Commissioner of Central Excise (Appeals),Mumbai II) For approval and signature: Shri K.K.Agarwal, Honble Member (Technical) ======================================================
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 Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : authorities? ====================================================== M/s Mahanagar Gas Ltd. Appellant Vs. CCE, Mumbai II Respondent Appearance: Shri. M.H.Patil Advocate For Appellant Shri D.P.Mukhopadhyay SDR For Respondent CORAM: Shri K.K.Agarwal, Honble Member (Technical) Date of Hearing : 11.1.2008 Date of Decision : 11.1.2008 O R D E R NO. Per : K.K.Agarwal, Member (Technical) :
1. The issue in the present case is that the appellants have been denied refund on the ground that the excess duty charged from customers was later on reimbursed to the customers by issue of credit notes. The Commissioner (Appeals) while denying the refund has relied upon the decision of the CESTAT in the case of CCE vs. Addison & Co. 1997 (93) ELT 429 (T) in which it was held that once the assessee has passed on the duty burden at the time of clearance of goods, there after notwithstanding the fact that he has issued credit notes to the buyer, he cannot come forward to claim the refund in terms of Sec.11B. It is the appellants contention that the decision relied upon by the Commissioner (Appeals) has been reversed by the Honble High Court of Madras in Addison & Co. Ltd. case 2001 (129) ELT 44 (Mad) and the matter was remanded back to the Tribunal for fresh decision and the Tribunal has there after allowed the refund vide its decision reported in 2003 (161) ELT 460 (Tri.). It was accordingly prayed that very basis on which refund was denied no longer stands and the Commissioner (Appeals) order needs to be set aside.
2. I have considered the submissions. I find that though the Commissioner (Appeals) has rejected the claim only on the ground that the credit notes cannot be considered as evidence that the incidence of duty has not been passed on, he has not looked into other aspects whether the incidence of duty has really been passed on or not. It is the appellants contention that credit notes were issued on the very date on which invoices were issued and therefore, the net realization from the customers has been only to the extent of the duty subsequently charged by them. There has been no excess recovery of duty from customer and this fact can be verified form their books of accounts. He also submits that the price of the goods remained the same for ultimate buyer and therefore the question of passing on incidence of duty from the customers to their buyers does not arise. These matters needs verification at the original authoritys end and therefore, the matter is remanded back to the original authority to look into the aspect whether credit notes were issued on the same date on which the invoices were issued and there has been no excess recovery of duty from the customers. If credit notes have been issued on the same date when duty was debited from the customers account, then refund cannot be claimed on grounds of unjust enrichment.
3. Appeal is disposed of as per above terms.
(Pronounced and dictated in court) (K.K.Agarwal) Member (Technical) .ts. / 20059607110108MM