At, Customs Excise Service Tax Appellate Tribunal New Delhi
By, THE HONORABLE JUSTICE: ASHOK JINDAL
For Petitioner: Shreya Dahiya, Advocate And For Respondents: G.R. Singh, AR
1. The appellant is in appeal against the impugned order.
2. Brief facts of the case are that the appellant is engaged in the manufacture of iron and steel products and clearing the same on payment of duty to various customers for construction purposes. To pay duty cleared for their own use they have adopted transaction value based on market price charged. Revenue raised the objection and pointed out that excisable goods were removed on the basis of 110% of the cost of manufacture in terms of Rule 8 of Central Excise Valuation Rules, 2000, accordingly, the appellant paid the duty as per CAS-4 certificate. Due to variation in prices at the end of the year appellant found that in some cases they have paid excess duty as per CAS-4 and in some cases they have paid less duty. After adjustment of the duty payable by the appellant and excess duty paid by the appellant, the appellant filed refund claim of excess duty paid during the said period and in support of their refund claim the appellant produced certificate issued by the Chartered Accountant showing that their sister unit have not taken cenvat credit of excess duty paid by the appellant. Moreover, to that effect, certificates have been obtained from the sister unit that they have not taken the cenvat credit. The appellant requested to the Range authorities to verify whether the buyer has taken cenvat credit or not. In some cases, the Range Superintendent issued certificates that they have not availed cenvat credit of excess duty paid by the appellant and in some cases they have not given any report. In these circumstances, both the authorities below rejected the refund claim on the ground that the appellant has not opted for provisional assessment during the impugned period. Aggrieved from the said order, the appellant is before me.
3. Ld. Counsel for the appellant submits that as appellant has been able to produce a certificate from the buying unit that they have not taken cenvat credit. Moreover, Chartered Accountant has also issued the certificate to that effect. It is the contention that they have requested Range authority to certify whether the buying unit has taken cenvat credit on excess duty paid by the appellant but the Range did not give its complete report. As appellant has been able to discharge the burden of unjust enrichment, therefore, they are entitled to refund claim. It is also contended that this issue has been settled in appellant's own case vide Final Order No. 53849/2016 dated 28.09.2016, this Tribunal observed that-
"the appellant have approached the jurisdictional Assistant Commissioner on 20.06.2005 itself for a permission for provisional assessment under Rule 7 of Central Excise Rules, 2002 for the financial year 2005-06. The said request was rejected. We note that the ld. Commissioner (Appeals) finds such request and subsequent rejection is of no consequence to decide the appellant's liability for duty. We find the reasoning given by the lower authority as devoid of merit. In the present case, the appellant was not allowed to have provisional assessment and the department now proceeds to demand of duty selectively for periods within the same financial year wherever the value is less than the Rule 8 value and refused adjustment within the same financial year when the value is determined higher than the Rule 8 value. It is apparent that the duty liability as already discharged on the basis of value which is not final. The net excess or shortage will have to be considered. In the present case, admittedly, no refund has been claimed or under consideration for the impugned period even though overall payment by the appellant for the whole year is much higher than the actual liability".
4. As the request for provisional assessment has been rejected. Therefore, as appellant has approached the jurisdictional Asst. Commissioner for provisional assessment and same has been rejected. Therefore, the question of opting for provisional assessment during the impugned period does not arise.
5. On the other hand, ld. AR for the Revenue supported the impugned orders.
6. Heard the parties considered the submissions.
7. On careful consideration of both the sides the issue emerges is-
"(i) Whether the appellant has been able to discharge their burden of unjust enrichment or not; and
(ii) Whether the appellant was required to opt for provisional assessment or not?"
Issue No. (i)
I find that the appellant has been able to produce undertaking given by the buying unit that they have not taken cenvat credit on excess duty paid by the appellant. Moreover, the Chartered Accountant certificate was submitted to that effect. Further, I find that the appellant has written to the jurisdictional Range of Central Excise of the buying unit to certify the fact whether the buying unit has not taken cenvat credit. In some cases, the report has been submitted to that effect. Therefore, benefit of doubt goes in favour of the appellant as per the undertaking filed by buying unit. Moreover, the Revenue has not produced any contrary evidence to show that the buying unit has taken cenvat credit of excess duty paid by the appellant. The allegation of the Revenue is only based on presumptions and assumptions which is not sustainable in law. As the appellant has been able to discharge their burden of unjust enrichment. Therefore, appellant is entitled to refund claim in question.
Issue No. (ii)
I find that the appellant has approached for a permission for provisional assessment under Rule 7 of Central Excise Rules, 2002 for the financia
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l year 2005-06, the said request was rejected. In that circumstances, it cannot be said that the appellant has not applied for provisional assessment. As Revenue itself is of the view the for the earlier period that they are not entitled for the permission for provisional assessment, therefore, Revenue cannot change its stand at this stage. In that circumstances, I do not find any force in the argument of the ld. AR. Accordingly, the said argument is turned down. 8. In view of the above analysis it is held that the appellant is entitled for refund claim. Accordingly, the appeals are allowed with consequential relief.