Custom, Excise & Service Tax Tribunal
M/S Little Bee Impex vs Cc, Amritsar on 20 March, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 20/03/2013. DATE OF DECISION : 20/03/2013. Customs Appeal No. 308 and 340 of 2007 [Arising out of the Order-in-Appeal No. 29/Cus/Appl/Ldh/2007 dated 28/02/2007 passed by The Commissioner (Appeals), Central Excise, Chandigarh.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, 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 would 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 : Department Authorities? M/s Little Bee Impex Appellant Versus CC, Amritsar Respondent
and vice-versa Appearance None for the appellant.
Shri Nagesh Pathak, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 55933-55934/2013 Dated : 20/03/2013 Per. Archana Wadhwa :-
The appeals are being disposed of by a common order as they arise out of the same impugned order of Commissioner (Appeals) by which he has allowed assessees part refund claim of Rs. 7,03,188/- and has rejected the balance refund claim of Rs. 17,50,671/- on account of limitation. Both the sides are in appeal against the respective parts of the impugned order.
2. While dealing with the assessees appeal, we find that appeal has come on board a number of times and the appellant was not represented on all these occasions. This was also noted by the Bench on 10/5/11 that the appellant was unrepresented on several occasions. However, the matter was adjourned with directions to the Registry to list the same alongwith the Revenues appeal. Thereafter also the matter has come up on record number of times and every time the same was being adjourned in the interest of justice and by way of last chance.
3. In as much as the appellants are again unrepresented today, we dismiss their appeal for non-prosecution as we are convince that the appellant is not interested in pursuing the appeal.
4. As regards the Revenues appeal, we have heard learned DR. It seems that the assessee was exporting honey and was paying export cess @ 0.5% of FOB value on goods exported during the period of January 2004 to February 2006. In as much as the export cess was exempted and was not payable under notification issued under F. No. 11/16/86-FP (Agri IV) dated 17/01/2001 of Ministry of Commerce and Industry (Department of Commerce), New Delhi, the appellant claimed the refund of the same.
4. The said refund claim was originally rejected by the original Adjudicating Authority, but on appeal, Commissioner (Appeals) allowed a part refund and rejected the balance amount as barred by limitation.
5. It is not disputed that the part refund allowed by Commissioner (Appeals) is within the period of limitation. Further, there is no dispute about the fact that payment of export cess on export of honey was exempted. Revenues only grievance is that the shipping bill, which were duly assessed were not challenged by the exporter and as such direct filing of refund claim is not in accordance with the declaration of law by the Honble Supreme Court in the case of Priya Blue Industries Ltd. vs. CC reported in 2004 (172) E.L.T. 145 (S.C.).
6. We find that the appellants paid the export cess by mistake and Revenue accepted the same, without any objection. As such, it seems to be a case of payment of export cess under a mistake. Neither the appellant was aware of the exemption of the same nor the Revenue adviced him not to pay the cess. The decision of Honble Delhi High Court in the case of Aman Medical Products Ltd. vs. CC, Delhi reported in 2010 (250) E.L.T. 30 (Del.), wherein the Honble High Court has held that when there is no lis between the assessee and the Revenue, non filing of any appeal against the assessment order cannot act fatal to the assessees claim of refund. By applying the ratio of the above decision to the facts of the present case, we find that there was no lis between the appellant and the Revenue and it was a simple case of payment of export cess on a mistaken belief, which was also not rectified by the Revenue. We accordingly find no infirmity in the view adopted by Commissioner (Appeals). Revenues appeal is accordingly rejected.
7. Both the appeals are disposed of in the above manner.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
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