Custom, Excise & Service Tax Tribunal
Waters (India) P. Ltd vs Commissioner Of Central Excise, ... on 9 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/532/2009-SM [Arising out of Order-in-Appeal No. 44/2009 dated 30/04/2009 passed by the Commissioner of Customs, Bangalore] Waters (India) P. Ltd. No.36a, Ii Phase, Peenya Industrial Area, Bangalore Appellant(s) Versus Commissioner of Central Excise, Service Tax And Customs Bangalore-II PB 5400, CR Building, Queens Road, Bangalore 560 001 Karnataka Respondent(s)
Appearance:
Shri V. Raghuraman, Advocate #466, 9th Cross, 1st Block, Jayanagar, Near Madhavan Park, Bangalore 560 011 Karnataka For the Appellant Shri Parasivamurthy, Deputy Commissioner (AR) For the Respondent Date of Hearing: 09/01/2018 Date of Decision: 09/01/2018 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20030 / 2018 Per : S.S GARG The present appeal is directed against the impugned order dated 30.04.2009 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original. Briefly the facts of the present case are that the appellants imported components/accessories and spares for the manufacture and maintenance of high performance liquid chromatographs systems from their principals M/s. Waters Ges. Austria and M/s. Waters Corporation USA. As per the investigation order no. 158/95 dated 14.11.95 of SVB, Chennai the goods were originally assessed based on invoice value for components and at the ratio of 95:100 on the invoice value for spares. The bills were provisionally assessed. Consequent on the finalization by the special valuation Branch Chennai vide order 11812/2002 SVB dated 26.07.2002, the provisional assessments were finalized and the appellant filed a claim for refund of extra duty deposit of Rs. 8,23,824/- (Rupees Eight Lakhs Twenty Three Thousand Eight Hundred and Twenty Four only) in respect of 28 bills of entry finally assessed on 22.08.2002. The Assistant Commissioner of Customs Air Cargo Complex initially vide letter CNO 546/73/2003 Refund/10676/03 dated 22.12.03 rejected the refund claim as being hit by limitation of time. Aggrieved by the said letter, the appellant immediately preferred an appeal to the Commissioner of Customs (Appeals) contending that their claim is not time barred. In the meantime, the lower authority suo moto reconsidered their decision contained in letter CNO 546/73/2003 Refund/10676/03 dated 22.12.03 and took up the refund claim for decision on merits. During the course of verification of the relevant bills of entry, the lower authority found that there is short levy of duty in respect of four bills of entry, i.e. in the bills of entry no. 298150 and 302342, the basic customs duty and CVD were reflected as nil by the appellants whereas it should have been charged at 25% and 16% respectively and in bills of entry no. 297476 and 297485, as per the SVB order, the loading should have been 5% but has been loaded only by 1% and the same was explained to the appellants vide letter C. No. S 46/73/2003 Refunds dated 30.08.2003 as well as during the personal hearing on 16.09.2003. After adjusting the amounts which were short collected from the original refund claim of Rs. 8,23,824/- (Rupees Eight Lakhs Twenty Three Thousand Eight Hundred and Twenty Four only) the balance amount of Rs. 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) was refunded to the appellants who had accepted the refund amount of Rs. 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) for which a cheque dated 16.02.2004 was issued in full settlement of the refund claim.
Aggrieved by the rejection of refund claim, the appellant preferred an appeal before the Commissioner (Appeals) contesting the issue of refund being barred by limitation and the Commissioner (Appeals) vide its order dated 29.03.2004 allowed the appeal stating that the relevant date is when the end use bond was discharged and cancelled on 04.03.2003 and the refund claim has been resubmitted on 19.06.2003 which is well within the limitation period of six months. Accordingly the Commissioner (Appeals) set aside the order and allowed the appeal. After allowing the appeal by the Commissioner, the respondent refused to comply with the order and through the letter Additional Commissioner again reiterated that as per hearing dated 16.09.2003 the representative of the appellant has accepted Rs. 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) for which cheque has been issued. Thereafter the appellant filed a miscellaneous application before the Commissioner seeking direction to the Assistant Commissioner to release the refund amount. When the original authority did not comply with the order, the appellant approached the Honble High Court of Karnataka by way of Writ Petition No. 10391/206 for direction under the Writ of Mandamus for grant of balance refund of Rs. 6,01,380/- (Rupees Six Lakhs One Thousand Three Hundred and Eighty only) and the Honble High Court without expressing any opinion on merits of the case disposed of the case with the direction to the Assistant Commissioner to consider the matter in accordance with the law within three months. As per the direction of the Honble High Court, the Deputy Commissioner of Customs vide Order-in-Original No. 84/2008 dated 12.08.2008 rejected the refund claim stating that all representation of the appellant has been disposed of in terms of order dated 16.02.2004 and 02.07.2004 which stated that the refund claim has already reached finality as the representative of the appellant has accepted the refund of Rs. 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only). Thereafter the appellant filed an appeal before the Commissioner and the Commissioner (Appeals) vide order dated 30.04.2009 rejected the appeal. Hence the present appeal.
2. Heard both the parties and perused the records.
3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law in the right perspective and also without considering the decisions rendered by the Tribunal and the High Court. He further submitted that the order of the Commissioner (Appeals) dated 29.03.2004 vide which the letter dated 22.12.2003 was set aside on the issue of limitation has attained finality and the Department has not filed any appeal against the said order of the Commissioner (Appeals) and the Department is now bound by the said order. In support of this submission, he relied upon the following decisions:
a) CCE Vs. EL.P.EM Industries 2017 (365) E.L.T. 565 (Mad.)
b) G-Tech Computer Education Centre Vs. CCE 2017 (4) GSTL 178 (Tri.-Bang.)
c) M/s. Minerals Enterprises Ltd. Vs. CCE 2017-TIOL-4117-CESTAT-BANG.
d) Boving Fouress Ltd. Vs. CCE 2006 (202) E.L.T. 389 (SC)
e) CCE, Vadodara Vs. Gujarat State Fertilizers & Chem Ltd. 2008 (229) ELT 9 (SC)
f) Union of India Vs. Kamlakshi Finance Corporation Ltd. 1991 (55) ELT 433 (SC) 3.1. He further submitted that subsequent to the decision of the High Court, the Department cannot raise fresh grounds for rejecting the refund. He further submitted that the original authority has now raised new grounds which are not permissible under law for rejecting the refund claim. He further submitted that the findings of the original authority is clearly beyond the scope of the proceedings of refund claim since the discrepancies stated in the Order-in-Original were not informed to the appellant and no new case could be made against the appellant for which the appellant had no notice. In support of this submission, he relied upon the following decisions:
a. Alang Marine Ltd. Vs. CCE 2006 (204) E.L.T. 297 (Tri.-Mum.) b. Vaspar Concepts (P) Ltd. V. CCE 2006 (199) ELT 711 (Tri.-Bang.) c. Punjab Communications Ltd. Vs. CCE 2006 (199) E.L.T. 161 (Tri.-Del.) d. Birla Copper Vs. CCEx, Vadodara 2005 (191) E.L.T. 239 (Tri.-Mum.) 3.2. He further submitted that the entire refund proceedings have been conducted without adhering to the principles of natural justice since all information and orders were being issued by letters and by passing cryptic order without any findings and in support of this submission, he relied upon the following decisions:
a. Nestle India Ltd. Vs. CCE 2009 (235) E.L.T. 577 (SC) b. Calcom Vision Ltd. Vs. CC (Refund) 2006 (206) E.L.T. 955 (Tri.-Del.) c. North Eastern Tubes Ltd. Vs. CCE 2008 (227) E.L.T. 398 (Tri.-Kolkata) d. Sri Ramakrishna Mills Ltd. Vs. CCE 2001 (132) E.L.T. 453 (Tri.-Chennai) 3.3. He also submitted that the acceptance of the partial refund of Rs. 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) by the representative of the appellant cannot be the ground for rejecting the claim of the balance amount as there is no estoppel against law. In support of this, he relied upon the decision of the Honble Supreme Court in the case of Madhumilan Syntex Ltd. - 2006 (195) E.L.T. 141.
4. On the other hand the learned AR reiterated the findings of the impugned order.
5. After considering the submissions of both the parties and perusal of the material on record, I find that the decision of the Commissioner (Appeals) dated 29.03.2004 holding that the claim is within the period of limitation has become final and the Revenue has not filed appeal against the same. Therefore, the Revenue has to refund the entire amount of refund claim of Rs. 8,23,824/- (Rupees Eight Lakhs Twenty Three Thousand Eight Hundred and Twenty Four only) whereas the Revenue has only refunded the amount of Rs. 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) on their own. Further I find that in view of the decision of the Madras High Court in the case of Commissioner of Central Excise Vs. EL.P. EM. Industries - 2017 (356) E.L.T. 565 wherein it has been held that in the earlier proceedings, the adjudicating authority cannot raise the fresh ground for which the assessee has not been given any notice. Further I also find that in the case of G-Tech Computer Education Centre, this Tribunal has held as under:
Refund - Consequent to decision of Appellate Authority - Commissioner (Appeals) setting aside tax liability beyond normal period and also penalty imposed - Order of Commissioner (Appeals) not challenged by Revenue and becoming final - Improper to reject refund claim made pursuant to order of Commissioner (Appeals) on the ground that assessee had voluntarily paid tax - Having accepted Commissioner (Appeals) decision, Department cannot turnaround and not implement it - Bounden duty of assessing authority to follow decision of appellate authority and grant refund amount covered by appellate authoritys order - Denial of refund not justified and orders set aside with consequential relief - Section 11B of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994. [2012 (283) E.L.T. 369 (Ker.) relied on]. [para 4]
6. Therefore, in view of my discussion above, I am of the considered view that the impugned order is not sustainable in law and therefore, the same is set aside by allowing the appeal of the appellant. Consequently, the appellants are entitled to the refund of Rs. 6,01,380/- (Rupees Six Lakhs One Thousand Three Hundred and Eighty only).
(Operative portion of the Order was pronounced in Open Court on 09/01/2018) (S.S GARG) JUDICIAL MEMBER iss...