Kali Steel & Engineering Industries ... vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.E/1231/2004

[Arising out of Order-in-Appeal No.187/2004 (SCN)-TRY-II dt. 16.7.2004 passed by the Commissioner of Central Excise (Appeals), Trichy]

Kali Steel & Engineering Industries Pvt. Ltd. Appellant

Versus

Commissioner of Central Excise, Tiruchirapalli Respondent

Appearance:

Shri M.A.Mudimannan, Advocate For the Appellant

Shri K.P.Muralidharan, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 3.8.2015

FINAL ORDER No.40916/2015

Per R. Periasami

The appeal is filed against OIA dt. 16.7.2004 passed by Commissioner of Central Excise (Appeals), Trichy.

2. The brief facts of the case relates to denial of consequential refund of Rs.1,07,245/- claimed by the appellant arising out of OIA No.46/2003 dt. 31.1.2003 wherein the appellate authority has partly allowed the assessee's appeal whereas the adjudicating authority in his order dt. 10.3.2004 rejected the refund amount on the ground that the claim is not supported by any quantification or valid evidence that incidence of duty has not been passed on to any other customer Against this, appellant preferred appeal before the Commissioner (Appeals) and the Commissioner (Appeals) in the impugned order upheld the order and dismissed the appeal. Hence the present appeal before Tribunal.

3. Heard both sides. Ld. Advocate appearing for the appellant submits that they have produced copy of worksheet as per the annexure to the show cause notice which is already enclosed at pages 25 to 27 of the appeal folder. They have also produced separate worksheets showing the refund amount arising out of each invoice in the form of annexure to worksheet at pages 21, 22, 23 which is reflected as per the annexure to SCN starting from 3.4.96 to 31.3.97 and listed out all the invoices and the amounts involved. He further submitted that they have also submitted proof of payment of duty and produced copy of Extract of RG.23C Part-II. He submits that they have paid an amount of Rs.1,07,245/- by debiting in RG.23C Part-II on 1.7.1997 at Sl.No.1. He submits that this amount related to goods which were already cleared and the amount involved is Rs.11, 20/- and upto Rs.53,000/-. They never raised any supplementary invoice. They neither issued any credit note nor debit note. He submits that this demand was issued by department as per annexure to SCN and they complied with SCN by debiting in RG.23C Part II. Therefore, they have not passed on incidence of duty. He relied on Tribunal's decision in the case of Plas Pack Industries Vs CC Ahmedabad - 2004 (167) ELT 422 (Tri.-Mumbai).

4. Ld. A.R reiterates the para-4 of OIA and also annexure to SCN and submits that amount is not small and it ranges from Rs.53000 to Rs.57000/-. He submits that Commissioner (Appeals) has rightly held that appellants have not produced document evidencing passing of incidence of duty to customers. He relied on the following citations :-

(1) SRF Ltd. Vs CC Chennai 2006 (193) ELT 186 (Tri.-LB)

(2) TVS Motor Company Ltd. Vs CCE Chennai-III 2014 (303) ELT 520 (Mad.)

5. After hearing both sides, we find that the issue relates to consequential refund claimed by the appellant on account of OIA No.46/2003 wherein the appellant's appeal was partly allowed. Both the adjudicating authority and the appellate authority have rejected the claim saying that appellant has not produced document evidencing payment of duty and on the unjust enrichment. On perusal of annexure to SCN at pages 25 to 26, the demand has been made at various rates on each invoice whereas the total demand was made to Rs.1,48,241/-. Out of this, they have paid an amount of Rs.1,07,245/- on 1.7.97 as per SCN before passing of OIO dt. 30.12.1997. On appeal, it was partly allowed by LAA. As regards the demand of proof of evidence on payment of Rs.1,07,245/-, we find from extract of RG-23C Part II at page 24 which clearly shows that at Sl.No.1, there is an endorsement in the RG-23C Part II showing payment of Rs.1,07,245/- towards SCN OC NO.403/97 dt.31.3.97. This debit was made towards the SCN which clearly confirms that appellant debited entire amount in RG-23C Part II as a proof of payment towards the SCN which is now sought as refund in view of Commissioner (Appeals) order. Therefore, appellant has produced sufficient evidence on payment of duty in RG-23C Part II. As regards unjust enrichment clause, we find that entire demand arose out of differential duty worked out in each invoice. The goods were already cleared during the period 3.4.96 to 31.3.97 whereas the SCN was issued subsequently. On perusal of the amount involved, they have made the payment by way of RG-23C Part-II and therefore question of unjust enrichment does not arise. We also note that appellants have paid the entire amount of Rs.1,07,345/- by way of debit in capital goods credit in RG-23C Part II. Accordingly, in view of above, we hold that appellants are eligible for refund amount debited in RG.23C-Part-II as re-credit of cenvat credit. The citations relied on by Ld.AR are not applicable since the amount was already paid towards show cause proceedings and not due to variation in price. The Tribunal's order in the case of Plas Pack Industries Vs CC (supra) is squarely applicable to the facts of this case. As duty is paid subsequent to clearance of the goods which is only towards show cause proceedings but not any other ground. Accordingly, the impugned order is set aside and appeal is allowed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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