Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise vs Shon Ceramics Pvt. Ltd. on 9 December, 2003
ORDER Gowri Shankar, Member (T)
1. Shon Ceramics Pvt. Ltd., the respondent to this appeal, filed 26 claims for refund of excise duty paid in excess. Notice was issued to it proposes to reject the claim on various grounds. After considering the reply from the claimant, and hearing it, the Assistant Commissioner dismissed the claim as unsubstantiated holding that the assessee had not furnished documents to substantiate the claim that duty had been paid in excess.
2. The assessee appealed this order. The Commissioner (Appeals) found with regard to one claim for Rs. 1,41,439/- that the ground on which the Assistant Commissioner rejected the claim, that the claim to refund has not been substantiated was incorrect and that evidence of duty in payment in excess had been produced. He also found that the requirement contained in respect of the claim in Sub-section (2) of Section 11B of the Act had been satisfied since the sum claimed as refund was paid through T.R.6 challans following the order-in-original of the Collector. He thus found that the claim for Rs. 1,41,439/- was in order. He therefore allowed this claim and dismissed the appeal with regard to the others. The appeal by the Commissioner is against this order.
3. The ground in the appeal is that the Commissioner (Appeals)' conclusion that the provision of Sub-section (2) of Section 11B of the Act will not apply because the amount was paid through T.R.6 challan is incorrect and that it is upon the claimant of refund to show that the incidence of duty has not been passed. The departmental representative reiterates the ground in the appeal.
4. The appeal itself records that the claim which the Commissioner (Appeals) has allowed included penalty of Rs. 15,000/- and fine of Rs. 14,000/-. To the extent of Rs. 29,000/- therefore, the requirement in Section 11B (2) will not apply. So far as the remaining portion, which represents the duty that was paid, is concerned, the requirement contained in Section 11B (2) of course has to be satisfied. The Commissioner (Appeals) has said that the question of any unjust enrichment will not arise because the amount was paid through T.R.6 challans. The fact of payment through T.R.6 challans is not by itself a ground for holding that the requirement of Section 11B will not apply. However, the counsel for the respondent explains that what the Commissioner (Appeals) explains is that the duty has been paid sometime after the goods were cleared. If, in fact, the duty was paid subsequent to clearance, the onus will not fall upon the claimant of discharging the burden caused by Section 11B (2). This is the ratio of the decision of the Tribunal in Steelco Gujarat Ltd v. CCE 2000 (122) ELT 67, Sundaram Clayton Ltd v. CCE 2000 (117) ELT 116, Agarwal Distributors Pvt. Ltd. v. CCE 2000 (116) ELT 613, CCE v. Modi Oil & General Mills 2002 (150) ELT 430.
5. The Commissioner (Appeals) has found that the duty was paid in pursuance of an order passed by the Collector on 10.6.1980. The Assistant Commissioner records in his order that this sum was paid when the amount under consideration was paid between 1.8.1990 and 30.11.1990. The duty was thus paid more than ten years after the goods were cleared. The order of the Commissioner (Appeals) therefore does not require interference.
6. Appeal dismissed.