Foods, Fats And Fertilisers Limited vs Commissioner Of Central ...

[Arising out of Order-In-Appeal No 23&24-08 dated 29/04/2008 passed by CCE,C&ST(Appals), Vizag]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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?

FOODS, FATS AND FERTILISERS LIMITED, EDIBLE OIL SHORE TERMINAL, NEWPORT AREA KAKINADA Appellant(s)

FOODS,FATS AND FERTILISERS LIMITED, EDIBLE OIL SHORE TERMINAL, NEW PORT AREA KAKINADA Appellant(s)

Versus

Commissioner of Central Excise,Service Tax and Customs VISAKHAPATNAM-II NULL CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM, - 530035 ANDHRA PRADESH Respondent(s)

Appearance:

Shri A.K.S Murthy, Authorised representative For the Appellant

Dr. A.K. Nigam, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 09/01/2015

Date of Decision: 09/01/2015

CORAM:

HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20068-20069 / 2015

Per : B.S.V. MURTHY

In both the cases, the issue involved is whether the appellant is eligible for the refund of customs duty paid by them. The dispute is in respect of consignments of palm oil imported by the appellant and transfer to their warehouse. On the day when the Bill of Entry was filed, the tariff value was higher and by the time, the goods were cleared, the tariff value had come down. As a result, appellant filed two refund claims and there is no dispute about the eligibility of the appellant on merits. The dispute is only about the unjust enrichment.

2. The authorized representative for the appellant brought my attention to the fact that the appellant had produced Chartered Accountants certificate wherein it was clearly mentioned that on going through the records, invoices etc., Chartered Accountant had found that they had not passed on the higher rate of duty suffered by them. In the balance sheet also, as per the original authoritys observation, the appellant had shown the amount as receivable from Customs. The eligibility for the refund arose because between the time of Bill of Entry and time of removal, tariff value got changed and therefore within such a short interval, the appellant could have decided to transfer the liability and claim refund is also not reasonable. When the refund claim arises within two or three days and within 15 days, a refund claim is filed, the obvious conclusion would be that the appellant was clearly aware that by the time, the crude palm oil processed and cleared; the actual duty suffered to them was known to them. More over in this case on merits also, the appellant was eligible for refund. Further they were not selling the goods as such but they were processing the same and thereafter selling.

3. Under these circumstances, I consider that the appellant is eligible for the refund and therefore the impugned orders are set aside and the appeals are allowed with consequential relief, if any.

(Operative part of this order pronounced in the court on conclusion of the hearing)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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