M/S. Krishna Metal Works vs Commissioner Of Central Excise, Mumbai

[Arising out of Order-in- Appeal No. SB(22) 22/MV/2010 dtd. 20/1/2010 passed by the Commissioner of Central Excise (Appeals), 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?

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M/s. Krishna Metal Works : Appellants

VS

Commissioner of Central Excise, Mumbai : Respondent

Appearance

Shri. Ketan K. Shah, Partner of Appellant Shri. V. K. Shastri, Asst. Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 20/2/2015 Date of decision: 20/2/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against Order-in- Appeal No. SB(22) 22/MV/2010 dtd. 20/1/2010 passed by the Commissioner of Central Excise (Appeals), Mumbai, wherein the appeal of the appellant filed before the Commissioner (Appeals) was rejected and the Order-in-Original No. 187/54/D.C./MLD/08 dated 4/8/2008 was upheld. The facts of the case is that the appellant filed refund application before the Dy. Commissioner of Central Excise for the duty paid under protest vide TR-06 Challan No. 01/97-98 dated 6/12/1996 for Rs. 12,500/-, No. 02/97-98 dated 01/01/1997 for Rs. 12,500/-, No. 03/97-98 dated 1/2/1997 for Rs. 12,500/-, No. 04/97-98 dated 5/3/1997 for Rs. 12,500/- and 05/97-98 dated 6/3/1997 for Rs. 2,500/- respectively, the total amount worked out is Rs. 52,500/- and submitted relevant documents like PLA Sheets showing credit and debit entries in respect of above mentioned TR-06 Challans. The appellant also submitted self attested copies of the documents as well as certificate from Chartered Accountant stating that the appellant has not recovered the duty from their customer. The adjudicating authority rejected the claim only on the ground that appellant has failed to produce copies of TR6 challans. Aggrieved by the said order the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal of the appellant upholding order in original, therefore the appellant is before me.

2. The matter was part heard on 6/1/2015, today Shri. Ketan Shah, Propritor of the company appeared and submits that submissions made by their counsel may be taken on record and matter may be disposed of on merit.

2.1 Shri. Arun Mehta, Ld. Counsel for the appellant appeared on 6/1/2015 and argued that matter pertains to 1996-97. Duty was deposited in connection with the demand proceedings initiated by show cause notice-cum demand notice vide F. No. V. Adj(Ch. 72) 15-58/97 dated 10/4/1997. This show cause notice was adjudicated on 24/11/1997, the matter travelled up to CEGAT and thereafter again it was remanded for denovo proceedings and in the denovo proceedings the Ld. Commissioner has dropped the proceedings, Revenue filed appeal before CEGAT which also was dismissed vide Order No. A/717/2007/C.II(EB) dated 13/9/2007 which resulted into this refund claim against duty of Rs. 52,500/- paid vide five challans in the year 1996-97. It is his submission that at this stage, the original TR6 Challans are not traceable, however the Revenue has never disputed payment of duty of Rs. 52,500/- through out the period of proceedings. The appellant have submitted the PLA Sheets showing credit and debit entries in respect of five TR-06 Challans and also submitted self attested documents as well as certificate from Chartered Accountant stating that appellant have not recovered the duty from the customer therefore these documents are sufficient for granting the refund. It is his submission that department has not disputed the deposit of duty of Rs. 52,500/- . The refund was rejected only on the ground that TR 6 challans have not been submitted, when amount of TR 6 challans have been furnished and statutory record i.e. PLA has been submitted to the department even in absence of original challans department can conveniently ascertain the genuineness of the said deposit. It is his submission that PLA is statutory document which has been submitted from time to time to the department which clearly shows the entries of five challans, on the basis of which refund can be sanctioned. He placed reliance on the Kerala High Court Judgments in the case of Narayan Nambiar Meloths Vs. Commissioner of Customs [2010(251) E.L.T. 57(Ker.)].

3. On the other hand, Shri. V. K. Shastri, Ld. Asst. Commissioner (A.R.) reiterates the findings of the impugned order.

4. I have carefully considered the submissions made by both the sides and perused the record.

5. I find that only ground for rejection of the refund claim is non-submission of TR6 Challans. However, department has never disputed or taken stand that the amount for the refund sought by the appellant has not been deposited. When the appellant have given the details of all the five TR6 challans and copy of PLA wherein all five challans have been entered, it can not be inferred that deposit of duty is doubtful. The personal ledger account (PLA) at the material time was a statutory documents which was specifically meant for maintaining account of deposit of TR 6 Challans and debit of excise duty paid from the time to time. On perusal of copies of PLA it was found that the said personal ledger account was authenticated by the department. Copy of personal ledger account were being submitted alongwith periodical return to the department. Therefore even if TR6 challans are not available, the personal ledger account has similar strength to prove that the excise duty was paid vide TR6 challans on the basis of entries made in PLA. Therefore refund can be very well sanctioned on the basis of personal ledger account.

It is also observed that appellant have submitted their books of account, C.A. Certificate which proves that the amount of such excise duty paid vide five challans have been booked under head of advances and deposit, this also proves the deposit of excise duty of Rs. 52,500/-. After submissions of all the details and documents, only in absence of TR 6 challans, Revenue can not take stand to reject the claim of the appellant. It is up to the Revenue to verify at their end regarding the deposit of challans in respect of excise duty. In the present fact and circumstances I am of the considered view that even in the absence of TR6 challan, since sufficient material such as PLA, books of account of the appellant and details of TR6 Challans are available on record refund claim can be sanctioned. However Dy. Commissioner is at liberty to verify all the documents as discussed above and also aspect of unjust enrichment . The impugned order is set aside and appeal is allowed by way of remand to the adjudicating authority. The adjudicating authority is directed to pass a fresh order considering the above observations within the period of two months from the receipt of this order.

Needless to say that the appellant should be given sufficient opportunity of personal hearing and for submission any additional documents, if any.

(Dictated in court)

Ramesh Nair Member (Judicial)

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