Custom, Excise & Service Tax Tribunal
Weikfield Products Co (I) Pvt. Ltd vs Cce Pune Iii on 13 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1440/06 Mum
(Arising out of Order-in-Appeal No. P-III/023/2006 dated 30.01.2006 passed by the Commissioner of Central Excise (Appeals), Pune III)
For approval and signature:
Honble Shri Ashok Jindal, 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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Weikfield Products Co (I) Pvt. Ltd.
:
Appellant
Versus
CCE Pune III
Respondent
Appearance Shri Mihir Mehta, Advocate For appellants Shri D.D. Joshi, Supdt (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 13.03.2014 Date of Decision : 13.03.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeal against the impugned order for denying the claim of refund of partial duty paid by them during the course of investigation.
2. Brief facts of the case are that an investigation was carried out at the appellants premise and it was alleged that the appellant was doing under-valuation of their finished goods. The appellant paid Rs.4,00,000/- during the course of investigation. The said amount was adjusted by the adjudicating authority towards the differential duty. On appeal, the Commissioner (Appeals) confirmed the under-valuation and directed the appellant to pre-deposit Rs.6,00,000/- to entertain their appeal. The appellant paid an amount of Rs.6,00,000/- as directed by the Commissioner (Appeals). Thereafter, the appellant challenged the said order before this Tribunal and this Tribunal held that if the charge of suppression is proved in that case the demand of differential duty could be made only upto six months and remanded the matter back to the adjudicating authority to compute the demand. In the meantime, the appellant filed a claim for refund of Rs.10,00,000/- which were paid by them during the course of investigation as well as for hearing of the appeal before the Commissioner (Appeals). The amount of Rs.6,00,000/- paid by the appellant before the Commissioner (Appeals) as pre-deposit was refunded to them but the amount of Rs.4,00,000/- so paid during the course of investigation was rejected as partial duty. Aggrieved by the same, the appellant is before me.
3. Heard both sides.
4. The learned Consultant appearing on behalf of the appellant submits that the amount which have been paid during the course of investigation is not a part of duty unless until the same is confirmed against them. To support his contention he placed reliance in the case of Ganesh Enterprises v. CCE Ahmedabad - 2009 (240) ELT 106 (Tri. Ahm) and this Tribunals decision in the case of Raymond Ltd. vide order No. A/02/13/CSTB/C-I dated 02.01.2013.
5. On the other hand, the learned A.R. submits that as this Tribunal has confirmed the demand is to be reworked for six months and the same has to be adjusted against the amount paid by the appellant during the course of investigation therefore, the amount cannot be refunded. He further submits that while adjudication for the first time the said amount has been held as partial duty therefore, the appellant is not entitled to take refund of the same.
6. Considered the submissions made by both the sides.
7. The issue before me is that whether any amount paid by the appellant during the course of investigation can be refunded or not. The issue was decided by this Tribunal in the case of Ganesh Enterprises (supra) and Raymond Ltd. (supra). In the case of Raymond Ltd. this Tribunal has observed as under:-
It is not disputed that the appellant has paid the amount during the course of investigation but there is adjudication order and no confirmation of demands as on today against the appellant. In these circumstances, as we are bound by the decisions relied on by the appellant cited here-in-above i.e. Ganesh Enterprises (supra) we set aside the impugned order and allow the appeal with consequential relief.
8. Therefore, following the precedent decisions of this Tribunal, I set aside the order of rejection of the refund claim and allow the appeal with consequential relief, if any.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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