M/S. Bhuwalka Steel Industries Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. SB/138 to 139/Th-I/2009 dated 7/12/2009 passed by the Commissioner(Appeals), Central Excise, Mumbai]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. Bhuwalka Steel Industries Ltd. : Appellants

VS

Commissioner of Central Excise, Kalyan-I, Division : Respondent

Appearance

Shri. Dilip Patil with adjournment request for the Appellant Shri. Sanjay Hasija, Superintendent (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 8/5/2015 Date of decision: 8/5/2015

ORDER NO.

Per : Ramesh Nair

These two appeal are directed against Order-in- Appeal No. SB/138 to 139/Th-I/2009 dated 7/12/2009 passed by the Commissioner(Appeals), Central Excise, Mumbai, wherein the Ld. Commissioner(Appeals) rejected refund of Rs. 29,28,584/- and Rs. 4,12,625/- on the ground of unjust enrichment. From the facts of the case it is observed that appellant had not submitted before the original authority any documents to prove that incidence of duty for which refund is sought for have not been passed on to any other person. However appellant indeed submitted Chartered Accountants Certificate dated 14/9/2009 issued by Sushil Vyas & Associates wherein it was certified that amount of refund has been shown under head of Loan and Advances in the their balance sheet. Ld. Commissioner(Appeals) even after considering C.A. Certificate rejected the appeal giving following findings:

Further, I also find that in pursuance of Personal Hearing held on 14/9/2009, the Appellant vide letter dated BSIL/766/09-10, dated 21/9/2009 (received in this office on 22/9/2009), has submitted C.A. certificate, dtd 14/9/2009, in support of their claim that burden of duty has not been passed on to their customers. In this connection, I place reliance on the Honble Tribunals judgment in the case of India Firebricks & Insulation Co. Ltd. Vs. CC.(Port), Kolkata, reported in 2006(196) E.L.T. 148(Tri. Kolkatta), wherein it is interalia held that certificate issued by Chartered Accountant does not show any evidence that incident of duty has not been passed upon buyers. The assessee company failed to produce any evidence that incident of duty has not been passed by them upon buyers. Therefore, it was held that refund is barred of unjust enrichment. In view of the above facts, I find that the appellant are not entitled for any refund claim.

Aggrieved by the said order-in-appeal, the appellant is before me.

2. When the matter is called for hearing, representative of the appellant Shri. Dilip Patil appeared and requested for adjournment. However, after going through the appeal papers, I am of the view that matter can be disposed of.

3. Shri. Sanjay Hasija, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.

4. After going through the submissions made by Ld. A.R. and from appeal memo, I find, from the C.A. Certificate, it is clear that amount of refund has been shown in the balance sheet under Loan and Advances. If that is so, appellant is entitled for refund and claim for refund cannot be denied on the ground of unjust enrichment. I also observed that appellant have only submitted C.A. certificate but they have not submitted basic books of account such as balance sheet. I therefore remand the matter to original adjudicating authority with direction to consider C.A. certificate and also verify books of accounts. On verification, if found that the amount of duty paid for which refund is sought for has been correctly shown in the balance sheet under Loans and Advances and if the same has not been accounted as expenses in the profit and loss account then this can be accepted as a proof that incidence of such duty paid has not been passed on to any other person. The matter is remanded in above terms. Needless to say that appellant shall be given opportunity of hearing and also to file any additional documents in support of his claim. Adjudicating authority is expected to pass denovo order within a period of two months from the date of receipt of this order.

(Dictated in court)

Ramesh Nair Member (Judicial)

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