Custom, Excise & Service Tax Tribunal
M/S Micro Labs Ltd vs Commissioner Of C. Ex. & Service Tax, ... on 8 August, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE COURT I Appeal Involved: E/1938/2011 & E/2006/2011-SM [Arising out of Order in Appeal No. 13/2011 dated 12.4.2011 and 17/2011 dated 25/04/2011 passed by Commissioner of C. Ex. & Service Tax (Appeals), Bangalore ] M/s Micro Labs Ltd. Appellant Versus Commissioner of C. Ex. & Service Tax, LTU, Bangalore. Respondent
Appearance:
Mr. Pradyumna G.H. For the Appellant Ms. Sabrina Cano, Superintendent (AR) For the Respondent Date of Hearing: 08/08/2013 Date of Decision: 08/08/2013 CORAM:
HONBLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Final Order Nos. 25826 & 25827/2013 In both the appeals, issue involved is common and therefore, both the appeals are taken together for the disposal and a common order is being passed.
2. The appellant is engaged in the manufacture of P or P Medicaments and they exported medicaments on payment of duty and claimed rebate. While sanctioning rebate, the amount which was debited from CENVAT credit is allowed as cash refund. However, when a portion of the amount was rejected, the Maritime Commissioner used to specifically order that credit may be taken. However in the two cases before me, learned counsel submits that Maritime Commissioner did not mention that they can take credit. Nevertheless, the appellant took the re-credit since all along such credit was allowed by the Maritime Commissioner. Proceedings were initiated on the ground that such re-credit should not have been taken by the appellant but refund claim should have been filed under Section 11B of Central Excise Act, 1944 and as a result, the impugned order has been passed demanding the amount of credit taken with interest and imposing penalty.
3. Learned counsel submits that the decision in the case of BDH Industries Ltd. vs. Commissioner of Central Excise, Mumbai-I [2008 (229) E.L.T. 364 (Tri. - L.B.) rendered by the Tribunals Larger Bench would not be applicable to the facts of this case in view of the fact that when a refund claim is filed, the department may be able to examine whether duty was liable to be paid or not and whether unjust enrichment is attracted or not. In this case, refund claim has arisen as a result of export and therefore, the question of unjust enrichment does not arise. Moreover, refund has been allowed. Further, he submits that similar case had come up before this Tribunal in the case of Shasun Chemicals & Drugs Ltd. vs. Commissioner of C. Ex., Pondicherry [2010 (255) E.L.T. 592 (Tri. Chennai)] and the Tribunal had taken the view that the appellant is eligible for credit and therefore, denial of the same would be unjustifiable. However, the Tribunal imposed a penalty of Rs. 5,000/-. He submits that this decision may be followed in the appellants case also.
4. Learned AR submits that the Larger Bench decision is applicable to the facts of this case and therefore, the order passed by the lower authority is justifiable.
5. I have considered the submissions made by both sides. I find that decision in the case of Shasun Chemicals & Drugs Ltd. (supra) is applicable to this case and it would be unfair and unjust to demand the amount refunded. In any case, eligible credit has been taken. Normally, in such case, extended period cannot be invoked. Therefore, the demand for the amount taken as rebate cannot be sustained and as a result, demand with interest as well as penalty are set aside. However, following the precedent decision of the Tribunal, in this case also, penalty of Rs. 5,000/- (totaling Rs. 10,000/-) is imposed in each case on the appellant for procedural violation.
6. Both the appeals are disposed of in above terms.
(Pronounced and dictated in open court) B.S.V.MURTHY (TECHNICAL MEMBER) /vc/