Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of C. Ex. vs Ananda Fire Works Industries on 9 August, 2005
Equivalent citations: 2006(193)ELT250(TRI-CHENNAI)
ORDER T.K. Jayaraman, Member (T)
1. Revenue has filed an appeal against Order-in-Appeal No. 75/86, dated 26-6-1998 passed by the Commissioner (Appeals), Trichy.
2. The brief facts of the case are as follows :
The appellants manufactured fireworks, an excisable commodity. They were availing the SSI exemption under Notification No. 1/93 and also the Modvat facility. It was alleged that the respondents had crossed aggregate value of clearance of Rs. 30 lakhs on 9-8-1994. Hence there was a short payment of duty to the extent of Rs. 11,958/-. The lower authority confirmed the above demand. The respondents appealed to the Commissioner (Appeals). They submitted that by mistake they started paying duly at a higher rate of 15% even when they were within the 10% exemption limit. In order to correct the mistake they paid at a lower rate for the later clearances to off set the excess payment of duty. The Commissioner (Appeals) allowed the appeal of the respondents with the following observations :
From the facts it is clear that the appellants has also made excess payment which they themselves adjusted in the month of August, 1994. In fact the Superintendent of Central Excise, while making assessment on the RT 12s should have adjusted the amount paid in excess against the duty short paid vide invoice No. 353 to 359. In such cases the Superintendent of Central Excise is competent to demand duty or to giant refund under the provisions of Rule 171-I. Therefore, the observations of the lower authority that they should have filed refund claim separately under Section 11B is not legally correct because in cases where rate of duty has been approved as per the classification tiled under Rule 173B the assessment have to be made in terms of Rule 173B and if the assessee has short paid or excess paid the duty as per the approved classification list, the duty short paid/excess paid is required to be demanded/refunded on the RT 12 itself while making final assessment under Rule 173-I of the Central Excise Rules, 1944. In the instant case the appellants themselves had adjusted the excess duty paid against the short levy and hence there was no question of confirming the demand by the lower authority.
4. In view of the above, I allow the appeal and set aside the order passed by the lower authority.
2. The Revenue has come in appeal against the orders of the Commissioner (Appeals) on the following grounds :
(i) When there is an excess payment of duty by applying higher rate than the one approved in the CL then the refund would be covered by Section 11B as it is not a case of mere assessment of RT 12 returns in terms of Rule 173B. Tlie assessee should have filed a refund claim in this case. They relied on the following case law :
(a) Ramakrishna Engg. Wroks v. CCE, Bolpur .
(b) B.K Rubber Industries v. U.O.I. .
(c) Sulekha Works Ltd. v. CCE, Calcutta
(ii) As per Section 11B, the refund would not be available if incidence of duty has been passed to any other person. Shri U. Rajaram, ld. DR appeared for the Revenue and none for the respondents.
3. We have gone through the records of the case carefully. The appellants by mistake paid duty at a higher rate. When the mistake was detected they paid duty at a lower rate to the extent of excess payment already made. That amount is Rs. 11,958/- The Commissioner (Appeals) has held that under Rule 173-I at the time of assessment the Superintendent of Central Excise hag competent to demand duty or to grant refund. According to the Commissioner (Appeals) there is even no necessity to file refund claim by the respondents. Taking such a view he has allowed the appeal of the respondents. Since this is a question of adjustment of excess payment against the short levy, we do not find any merit in the Revenue's appeal considering that the amount involved is Rs. 11,958/-. Hence the Revenue appeal is rejected.
(Order dictated and pronounced in open Court)