Custom, Excise & Service Tax Tribunal
M/S Abhedya Industries Ltd vs The Commissioner on 21 June, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Bench Division Bench
Court I
Appeal No.E/2078/2010 & 2023/2010
(Arising out of Order-in-Appeal No.12/2010(H-III)CE, dated 28-05-2010 passed by Commissioner of C.CE&ST
(Appeals-III),Hyderabad)
For approval and signature:
Honble Ms.Sulekha Beevi,C.S, Member(Judicial)
Honble Mr.Madhu Mohan Damodhar, 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 Lordship wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
M/s Abhedya Industries Ltd..
..Appellant(s)
Vs
The Commissioner.
C.C.E&ST, Hyderabad-III.
&
..Respondent(s)
The Commissioner.
C.C.E&ST, Hyderabad-III.
..Appellant(s) Vs M/s Abhedya Industries Ltd.
..Respondent(s) Appearance Shri B.Venugopal and Shri P.Dwarakanath, Advocates for the Appellant Shri S.Prasada Rao, AR for the Respondent Coram:
Honble Ms.Sulekha Beevi,C.S, Member(Judicial) Honble Mr.Madhu Mohan Damodhar, Member(Technical) Date of Hearing : 19/05/2016 Date of decision : 21/06/2016 FINAL ORDER No._______________________ [Order per: Madhu Mohan Damodhar] Breif facts:
1. The appellants are registered manufacturers of Metalized films falling under Chapter Heading 39 of the first schedule to the Central Excise Tariff Act, 1985. A customer of the appellant namely M/s Ravi Foods Pvt.Ltd. was holding Duty Free Import Authorization (DFIA) and got the same invalidated by the Joint Director general of Foreign Trade in favor of the appellant for procurement of Aluminium Metalized BOPP film. Based on the said invalidated DFIA, the appellant had obtained advance authorization for deemed exports. The appellant manufactured and supplied the BOPP film to the said customer without payment of duty during the period 16-08-2007 to 18-10-2007 under the belief that the duty on the BOPP Film thus cleared is not required to be paid in view of Notification No.44/2001-CE dated 26-06-2001. Subsequently, on being pointed out by the officers of the department that the appellant is not entitled to clear without payment of duty, the appellant paid the duty amount of Rs.12,04,943/- along with interest of Rs.56,340/-. Thereafter, the appellant made the clearances of BOPP film to the above said customer against such invalidated DFIA on payment of duty during the period from 29-01-2008 to 31-03-2008, which totaled to Rs.6,92,787/-.
2. On 19-01-2009, the appellant preferred a refund claim of duty of Rs.18,97,731/- on the ground that for the clearance of BOPP film to M/s Ravi Foods Pvt.Ltd against invalidated DFIA they are not liable to pay any duty in terms of Notification No.44/2001-CE(NT) dated 26-06-2001. However, the Deputy Commissioner of Central Excise, rejected the refund claim vide his Order-in-Original No.28/2009( R) dated 27-08-2009 on the grounds that the Notification No.44/2001-CE(NT) does not cover DFIA Scheme and alternatively M/s Ravi Foods could have followed the procedure prescribed under Notification No.43/2001-CE (NT), which was also not followed. Further, he also rejected the refund claim on the grounds of limitation as well as unjust enrichment.
3. Aggrieved by the impugned order the appellant preferred an appeal before the Honble Commissioner(Appeals) Hyderabad who vide his Order-in-Appeal No.12/2010(H-III) dated 28-05-2010 set aside the rejection of the refund claim on account of limitation and unjust enrichment by the lower authority but however, upheld the rejection of the refund claim on the ground that Notification No.44/2001-CE(NT) did not cover goods cleared against invalidated DFIA and moreover, the procedure prescribed under the said Notification also has not been complied with. Aggrieved by the above order-in-Appeal, the appellant is preferring this appeal.
4. We have considered the submissions made by both sides.
5. The moot point for consideration is whether the appellants fall within the beneficial umbrella of notification 44/2001-CE(NT) dated 26-06-2001 so as to be eligible for refund.
6. For better appreciation of the issue at hand it would be worthwhile to reproduce relevant portion of the said notification.
In exercise of the power conferred by of sub-rule (3) read with sub-rule(2) of Rule 19 of the Central Excise (No.2) Rules, 2001, the Central Board of Excise and Customs hereby notifies the conditions, safeguards and procedures for removal of excisable goods (herein after referred to as the intermediate goods) from the place of manufacture without payment of duty for the purpose of use in the manufacture or processing of all articles (hereinafter referred to as the resultant articles) by a manufacturer who is a holder of a Duty Exemption Entitlement Certificate and an Advance License under the Duty Exemption Scheme (hereinafter referred to as the ultimate exporter) and their exportation out of India, to any country except Nepal and Bhutan, namely.
7. We find that the notification is expressly for the benefit of user manufacturer or ultimate exporter, further the notification does not cover DFIA holders. The assessee certainly does not fall in any of these categories. The contention raised by the learned counsel for appellant is that even if they are not covered under notification 44/2001, they are very much entitled to benefit of notification no. 43/2001CE(NT) and that mere non compliance of procedural requirement cannot be a reason to deny substantive benefit. They have relied upon the decisions rendered in Murli Agro Products Ltd Vs. CCE , Nagpur 2005 (183) ELT (Tri-Del) and CCE, Jaipur Vs Stainless India Ltd 2008(222) ELT 210 (Tri-Del). However, we observe that in both these cases the assessee therein had cleared goods in terms of notification 43/2001 which is not the situation in the case at hand. In this regard the following finding of the original adjudicating authority clearly explains why the appellant is ineligible for benefit under either 44/2001 or 43/2001.
The Board has specified two notifications under sub-rule (3) read with sub-rule (2) of Rule 19 ibid, Accordingly, the ultimate exporter shall follow the procedure prescribed under nay of the two Notification Nos. 43/2001-CE(NT) dated 26-06-2001 as amended and 44/2001-CE(NT) dated 26-06-2001 as amended issued under sub-rule (3) read with sub-rule (2) of Rule 19 ibid. As Notification No.44/2001 does not cover DFIA Scheme, the ultimate exporter ie. M/s Ravi Foods Pvt.Ltd could have followed the procedure as prescribed under Notification No.43/2001. However, no such procedure was followed by the ultimate exporter .
8. This being so, the contention of the appellant that even if they are not eligible under Notification No.44/2001 they could be given benefit of 43/2001 is therefore misconceived and unacceptable, since it is not the case of appellant that they had applied for benefit under 43/2001.
9. Coming to the appeal filed by Revenue, we find that their grievance is with regard to Commissioner (Appeals) setting aside the finding of original authority with regard to time bar and unjust enrichment. In this regard, we are of the view that the Commissioner has correctly relied upon settled case laws which have laid down that the date of initial submission of the refund claim shall be the actual date of submission for the purpose of limitation under section 11B of Central Excise Act, 1944 and not the date of resubmission. With regard to the second issue of unjust enrichment, the said appellate authoritys order clearly indicates that he has perused copies of invoices and other documents ,declaration of Ravi Foods that they had not availed CENVAT credit endorsed by jurisdictional superintendant, ledger extracts of the appellants &Ravi Foods etc; and has found payments were made only to the extent of value of goods excluding duty amount involved and that in each invoice duty amount has been deducted from the gross value to arrive at the amounts payable. We, therefore are of the opinion that the appellate authoritys decision with regard to unjust enrichment and time bar is fair and judicious.
10. From the fore going discussions we do not find any reason to interfere in the order in appeal dated 28-05-2010 which has been impugned by both assessee and Revenue. Consequently both appeals are dismissed.
(Pronounced on 21/06/2016 in open court) ( MADHU MOHAN DAMODHAR) MEMBER(TECHNICAL) dks ( SULEKHA BEEVI, C.S,) MEMBER(JUDICIAL) 7