M/S Jco Gas Pipe Ltd vs C.C.E. & S.T. Bhopal

[Arising out of Order-In-Appeal No. BPL-EXCUS-0000APP-232-13-14 dated: 18.02.2014 passed by Commissioner (Appeals) Bhopal]

For approval and signature:

Hon'ble Mr. 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 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?

M/s JCO Gas Pipe Ltd. ...Appellant

Vs.

C.C.E. & S.T.  Bhopal Respondent

Appearance:

Mr. G L Deshpande, Advocate for the Appellant

Mr. G R Singh, DR for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing.22.05.2015

FINAL ORDER NO. 54130 /2015

Per S. K. Mohanty:

Brief facts of the case are that the appellant is engaged in the manufacture of Saw Pipes. During the disputed period, the appellant had filed a refund claim of Rs. 4,04,231/- on the ground that due to error in preparation of invoice, excess Central Excise duty was paid on supply of goods to its buyer M/s SC Surana. However, the said buyer had settled the price of goods as per the purchase orders dated 05.10.2011 and 05.11.2011 placed by it on the appellant. For the differential amount of duty, the said buyer has issued the debit note to the appellant. The refund application filed by the appellant was allowed by the Assistant Commissioner vide order dated 15.01.2013. feeling aggrieved with the said order, Revenue filed appeal, which was allowed by the Commissioner (Appeals) vide the impugned order dated 18.02.2014. Hence, the present appeal is before the Tribunal.

3. The Ld. Advocate appearing for the appellant submits that the records maintained by the appellant clearly demonstrate that the incidence of excess central excise duty has been borne by the appellant and has not been transferred to any other person, which is evident from the Adjudication Order and the verification report furnished by the Range Officer. He further submits that the impugned order is not legal and proper since, without discussing the issue involved in the case, the Ld. Commissioner (Appeals) has denied the refund benefit by solely placing reliance on the decision of the Tribunal in the case of Commissioner of Central Excise, Kolkata vs Oriental Textiles Processing Co. Pvt. Ltd reported in 2012 (276) ELT 257 (Tri. Del).

4. Opposing to the submissions of the appellant, Ld. DR appearing for the Revenue submits that the onus to prove that the Central Excise duty incidence has not been transferred to the buyer squarely lies with the appellant, which has not been satisfactorily discharged, and thus, rejection of refund claim on the ground of unjust enrichment vide the impugned order is justified.

5. Heard the Counsel for both the sides and perused the records. I find that upon proper scrutiny and analysis of the refund application, the Original Authority has sanctioned the refund in favour of the appellant. The relevant paragraph in the Adjudication Order dated 15.01.2013 is extracted herein below:

In this regard the Range Officer in his verification report as discussed above has verified that the buyer M/s SC Surana has issued a certificate dated 24.02.2012 certifying that they have not paid the excess Central Excise duty and the value charged by the manufacturer vide the invoiced as referred above and issued a Debit Note dated 24.02.2012 against the party for the duty as claimed by the party. Further, Range Officer has also submitted verification report vide hi letter dated 10.01.2013 regarding credit of Rs. 44,15,247/- in the account of M/s SC Surana (the buyer) by M/s JCO Gas Pvt. Ltd. which established that the claimant has made refund claim. M/s SC Surana has also certified that he is not having any Central Excise and Service Tax registration therefore question of passing duty element to any other person does not arise.

6. The above findings proves beyond any shadow of doubt that the excess central excise duty paid by the appellant incorrectly has been entirely borne by it and has not been transferred to the buyer or any other person. Therefore, in my opinion, denial of the refund benefit and transferring the amount to the consumer welfare fund is not in conformity with the statutory provisions.

7. I also find that the Commissioner (Appeals) has not negated the observations recorded by the Original Authority in the Adjudication order. Rather the appeal of the Revenue has been allowed by him, solely placing reliance on the decision in the case of Oriental Textile (Supra), which is not proper, for the reason that the issue involved in the said decided case is entirely different from the facts of the present case.

8. In view of above, I do not find any merits in the impugned order, and thus, the same is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in open court)

(S.K. Mohanty)

Member(Judicial)

Neha

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E/53790/2014-Ex[SM]