Cce, Raipur vs M/S J.S. Strips & Power Ltd

[Arising out of the Order-in-Appeal No. 09/RPR-I/2006 dated 25/01/2006 passed by The Commissioner (Appeals), Customs & Central Excise, Raipur.]

For Approval and signature :

Honble Shri Rakesh Kumar, Member (Technical)

Honble Shri S.K. Mohanty, Member (Judicial)

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?

CCE, Raipur Appellant

Versus

M/s J.S. Strips & Power Ltd. Respondent

Appearance

Shri R.K. Grover, Authorized Representative (DR)  for the Appellant.

None  for the Respondent.

CORAM : Honble Shri Rakesh Kumar, Member (Technical)

Honble Shri S.K. Mohanty, Member (Judicial)

Final Order No. 51538/2015 Dated : 24/04/2015

Per. Rakesh Kumar :-

The facts leading to filing of this appeal by the Revenue are, in brief, as under.

1.1 The respondent had cleared 99.3 MT of Hot Rolled chequered H. Beam to M/s Kumagai Skanska vide invoice Nos. 2342 dated 29/5/2003, 2361 dated 30/5/03 and 2452 dated 02/6/03 at the transaction value of Rs. 19,700/- per MT. Later on the respondent noticed that the goods were to be cleared @ 15,690/- per MT. However, since the buyer had paid the price @ 19,700 per MT inclusive of duty, the respondent issued a debit note to the customer so as to rectify the price and subsequently filed of the claim for refund of the excess duty paid. The refund claim was sanctioned by the Assistant Commissioner vide order-in-original dated 29/12/2004. The Assistant Commissioners order was reviewed by the Commissioner and on direction of the Commissioner, the Assistant Commissioner filed a review appeal before the Commissioner (Appeals). The order had been reviewed on the ground that the Assistant Commissioner had not examined the unjust enrichment angle. The review appeal filed by the Department was dismissed by the Commissioner (Appeals) vide order-in-appeal dated 25/1/06 on the ground that there is no unjust enrichment. The Commissioner (Appeals) observed that even though the respondent have issued invoices showing the price of the products as Rs. 19,700/- per MT with the duty on the price of Rs. 19,700/- per MT, but when the customers received the invoices, they did not pay the consideration for the goods and the duty on the billed amount and that the amount paid by the customers to the respondent was @ 19,700 per MT including duty and thus the duty which was received by the respondent from their customers was on the price of 15,690 and thus the respondent have not received the extra duty element from the customers. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue. In respect of the Revenues appeal, the respondent have filed a cross objection.

2. None appeared for the respondent. However, there is a letter dated 23/2/15 from the respondent for decision of the matter on merits on the basis of the submissions made in the cross objection filed by them.

3. Heard Shri R.K. Grover, the learned DR, who assailed the impugned order by reiterating the grounds of appeal in the Revenues appeal.

4. We have considered the submissions of learned DR and have gone through the cross objection.

5. In this case the goods had been sold by the respondent to the customers at the composite price of 19,700 per MT and break up of this price was 15,690 per MT basic rate + Rs. 2,510 excise duty + Rs. 1,500 per MT freight, while the respondent, in the invoices issued by them, mentioned the basic rate as 19,700 per MT and paid excise duty on this price. It is not disputed that the customers have paid only the composite price of 19,700 whose break up is 15,690 basic price + 2,510 excise duty + 1,600 per MT freight. It is clear that though the respondent had paid the duty on higher value, they have received duty from the customers only on the basic price of Rs. 15,690/- per MT and as such there is no unjust enrichment. We, therefore, do not find infirmity in the impugned order. The Revenues appeal is dismissed.

(Dictated and pronounced in open court.)

(Rakesh Kumar)

Member (Technical)

(S.K. Mohanty)

Member (Judicial)

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