Custom, Excise & Service Tax Tribunal
C.C.E., Bhopal vs M/S. Tesla Transformer Ltd on 11 April, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-DB
COURT III
Excise Appeal No.E/959/2008-EX [DB]
[Arising out of Order-in-Appeal No.11/BPL/2008 dated 14.02.2008 passed by the Commissioner (Appeals), Customs, & Central Excise, Bhopal]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
HONBLE MR. R.K. SINGH, 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?
C.C.E., Bhopal Appellant
Vs.
M/s. Tesla Transformer Ltd. Respondent
Present for the Appellant : Shri. S. Nanthuk,JCDR
Present for the Respondent: Shri.P.D. Vasu (Rep.)
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
HONBLE MR. R.K. SINGH, MEMBER (TECHNICAL)
Date of Hearing/Decision: 11.04.2016
Final ORDER NO. 52906/2016
PER: S.K. MOHANTY
This appeal is directed against the impugned order dated 14th February, 2008 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Bhopal.
2. Brief facts of the case are that the respondent has supplied CRGO Energy Efficient Transformer to its buyer M/s.Mannarai Common Effluent Treatment Plant Pvt. Ltd., Tirupur, Tamilnadu vide invoice No.192 dated 06.01.2007 on payment of Central Excise duty of Rs.1,79,615. The buyer had filed the refund application on 16.05.2007 on the ground that the goods covered under the invoice were eligible for exemption under Notification No.3/2004-CE dated 08.01.2004. The refund application filed by the buyer was withdrawn subsequently on 05.07.2007. There after the respondent on 10.07.2007 had filed the refund application before the Jurisdictional Central Excise Authorities. The refund application field by the respondent was adjudicated and vide order dated 07.09.2007 refund of Rs.1,79,615/- was allowed in favour of the respondent.
3. Feeling aggrieved with the adjudication order dated 07.09.2007, the Department had preferred appeal before the Commissioner (Appeals). In appeal against the adjudication order, the ld. Commissioner (Appeals) has disallowed the appeal of the Revenue. Hence this present appeal before the Tribunal.
4. Heard the ld. Counsel for both sides.
5. We find that at the time of supply of goods, the respondent herein had charged the Central Excise Duty in the invoices which were paid by the buyer. This fact is evident from the refund claim filed by the buyer. Since the buyer has withdrawn the refund application and on 10.07.2007 the respondent had filed the refund application, it is evident that the Central Excise Duty amount was not returned by the respondent to the buyer till such time. There is also no evidence available in the file that the Department has insisted the buyer to withdraw the refund application. Since the incidence of duty had been passed on from the respondent to the buyer at the time of supply of goods, subsequent issuance of Cheque which is in the form of a credit note cannot be considered as a document to prove the fact that the incidence of duty has not been passed on.
6. We find support from the judgment cited by the ld. D.R. in the case of Commissioner of Central Excise and Customs vs Dutron Plastics reported in 2015 (322) ELT 267 (Guj.), wherein the Honble Gujarat High Court have held that the doctrine of unjust enrichment is established, even if the credit notes are issued after clearance of goods.
7. In view of the forgoing, we do not find any merits in the impugned order and accordingly, allow the appeal filed by the Revenue.
(Dictated and pronounced in the open Court)
(R.K. SINGH) (S.K. MOHANTY)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
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