The Superintendent Govt Saw Mill Waghai vs Commissioners Of Central Excise, ...

[ Arising out of OIA-KKS/350/DAMAN/2008 dtd 3.9.2008 Passed by Commissioners of Central Excise, Customs and Service Tax-DAMAN ]

The Superintendent Govt Saw Mill Waghai - Appellant (s)

Vs.

Commissioners of Central Excise, Customs - Respondent (s) and Service Tax-DAMAN

Represented by:

Appellant(s) : None Respondent(s) : Shri S K Shukla (AR)

For approval and signature :

Mr. P.K. Das, Hon.ble 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?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon.ble Member (Judicial)

Date of Hearing / Decision : 01/01/2015

ORDER No. A/10347 / 2015 dtd 1.1.2015

Per : Mr. P.K. Das,;

None appears on behalf of the appellant. There is no application for adjournment.

2. After hearing the Ld Authorised Representative for Revenue and on perusal of records, I find that the appellant filed refund claim of Rs 17,99,308.82 paid by them on the processing of Wood Timber. The Tribunal held that the processing of Wood Timber would not amount to manufacture The Adjudicating Authority has sanctioned the refund claim of Rs 1,45,383 and the balance amount of Rs 16,53,919/- was directed to be credited to the Fund under Section 11B of Central Excise Act 1944. Commissioner (Appeal) rejected the appeal filed by the appellant.

3. It is seen from the impugned order that the balance amount of refund was rejected on the ground that the appellant failed to produce documentary evidence or other evidence to establish that the incidence of duty had not been passed on by them to their customers/buyers. The Commissioner (appeal) had given detailed findings on his issue. In the grounds of appeal, it is contended by the appellant that the refund can be sanctioned to Govt of Gujarat Dept, on a simple indemnity as provided in the Treasury Rules. It is further contended that the Govt of Gujarat cannot be considered to be enriched, as amount of duty is paid on Timber was sold to jails and other Govt. Depts.

4. The Honble Supreme Court in the case of Bombay Tyres International Ltd vs CCE - 2000(121)ELT.48 (SC) held that if no material is produced by the assessee to show that the burden of duty paid under protest was not passed on the consumer despite opportunities granted, it alone is sufficient to disentitle for claiming the refund. There is no provision in the Central Excise law that the state government authorities would be are outside of the principles of unjust enrichment.

5. In view of the above discussions, I do not find any merit in the appeal filed by the appellant. Accordingly, the appeal filed by the appellant is rejected.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial)

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