M/S. Sunbeam Auto Pvt. Ltd vs Cce-Delhi-I

[Arising out of Order-in-appeal No. DLH-EXCUS-000-APP-170-14-15 dated 06-08-2014 passed by Commissioner of Central Excise (Appeals), New Delhi]

For Approval and Signature:

Honble Smt. Sulekha Beevi C.S., Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would 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 Department Authorities?

M/s. Sunbeam Auto Pvt. Ltd. Appellant

Vs.

CCE-Delhi-I Respondent

Appearance: Shri Alok Arora, Advocate for the appellant.

Shri M.R. Sharma, DR for the respondent.

Coram: Honble Smt. Sulekha Beevi C.S., Member (Judicial)

Final Order No. 53029/2015

Per: Sulekha Beevi C.S.

Brief facts are as under:

1. The appellant is engaged in the manufacture of Non Ferrous Automotive Components made of Aluminum Alloy by various Die Casting Process. They sell their products in domestic as well as foreign markets. During the Financial Year, 2005-2006, the appellants established 100% EOU as under LOP dated 18.10.2005. Appellant fulfilled their export obligation. Subsequently filed application for debonding the unit as per request letter dated 7.10.2011. The Development Commissioner, NOIDA issued In Principle Exit Order dated 27.10.2011 for conversion of EOU into DTA. They also filed request with jurisdictional authority for debonding of capital goods, spares, raw materials, semi processed goods lying in their stock with 100% EOU as on 24.1.2012.

2. The appellants then filed Green Bills of Entry for assessment and payment of appropriate Customs duty and Central Excise Duty on the entire stock of capital goods, spares, raw materials, etc procured without payment of duty under 100% EOU Scheme. Appellants discharged duty liability on finished goods lying in stock as on 31.1.2012 under Green Bill of Entry No. 64/2011-2012 dated 14.02.2012. It is the case of appellant that due to clerical mistake, the assessable value of the finished goods was shown as Rs. 62,60,353/- instead of Rs. 24,68,831 and Central Excise Duty amounting to Rs. 6,44,818/- was paid of which Rs. 3,76,321/- was excess. The above Bill of Entry was assessed by the Assistant Commissioner who issued a No Dues Certificate. After issuance of Final Debonding Order, the appellant exported the finished goods under ARE-1s dated 29.3.2012 and 30.4.2012.The appellant then filed rebate claim for Rs. 2,68,497/- and also a claim for refund of Rs. 3,76,321/- paid in excess due to clerical mistake which occurred on assessable value calculated on higher side. A show cause notice was issued to the appellant to show cause why the rebate claim and the claim to credit Rs. 3,76,321/- in CENVAT Credit account should not be rejected. The notice finalized in the order-in-original dated 3.1.2013 which held that duty paid at the time of de-bonding of unit cannot be granted rebate under Rule 18 of Central Excise Rules. It was also held that as the assessment of Bill of Entry was not challenged by the appellant refund of the excess duty paid cannot be granted. In appeal, the Commissioner (Appeals) upheld the rejection. Aggrieved the appellant is before the Tribunal against the rejection of refund of Rs. 3,76,321/- paid in excess at the time of debonding of the 100% EOU on account of clerical mistake.

3. The learned counsel for appellant pointed out that the payment of excess amount due to clerical error has not been disputed by the authorities below. By clerical mistake, more assessable value happened to be shown in the Bill of Entry resulting in excess payment of excise duty. Due to oversight the assessable value of finished goods was calculated at Rs. 62,60,353/- instead of Rs. 24,68,831/- and excise duty amounting to Rs. 6,44,818/- came to be paid. The ground for rejection stated is that the Assessment of Bill of Entry was not challenged as required under Board Circular No. 24/2004-CUS dated 18.3.2004. The learned counsel placed reliance on the following judgments:

i. ANK Seals (P) Ltd. Vs. Commissioner of Customs, Mumbai reported in 2007 (2008) ELT 572 (Tri-Mumbai)

ii. CCE, Nagpur Vs. B.P. ERGO Ltd reported in 2010 (261) ELT 950 (Tri-Mumbai)

iii. Aman Medical Products Ltd. Vs. Commissioner of Customs, Delhi reported in 2010 (250) ELT 30 (Del)

iv. CCE, Goa Vs. SESA Goa Ltd. in civil Appeal No. 10420/2013 judgment dated 27.4.2015 reported in [2015 (319) ELT 234 (S.C.)]

4. In the above judgments it is categorically held the refund claim is maintainable under section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file claim for refund. Applying the ratio laid in the above judgments, I find that the rejection of refund claim is unsustainable.

5. In the result, the impugned order to the extent of reject of refund claim of Rs. 3, 76,321/- is set aside. The appeal is allowed with consequential reliefs, if any.

(Sulekha Beevi C.S.)

Member (Judicial)

Ritu

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