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M/s. Leo Oils & Lubricants v/s Commissioner of GST & Central Excise Chennai North Commissionerate


Company & Directors' Information:- G S OILS LIMITED [Active] CIN = U15143TG1997PLC028321

Company & Directors' Information:- LEO LUBRICANTS PRIVATE LIMITED [Active] CIN = U74999MH2003PTC141393

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- E LUBRICANTS PVT LTD [Strike Off] CIN = U24100WB1972PTC028549

Company & Directors' Information:- LEO AND LEO (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31900DL1985PTC022100

    Appeal No. E/40362 of 2018 in-Appeal No. 352 of 2017 (CTA-I) & Final Order No. 42012 of 2018

    Decided On, 13 July 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONOURABLE MS. C.S. SULEKHA BEEVI
    By, JUDICIAL MEMBER

    For the Appellant: T.R. Ramesh, Advocate. For the Respondent: K.P. Muralidharan, AC (AR).



Judgment Text

1. Brief facts are that the appellant is engaged in manufacture lubricating oils on job work basis to M/s. IBP Ltd. and were availing the facility of MODVAT scheme. They applied for transitional credit to the tune of Rs.11,03,303/- which was not granted by the department. The matter reached the Tribunal and vide Final Order No. 40880/2016 dated 3.6.2016, Tribunal allowed the appeal of the appellant observing that the appellant is entitled to cash refund to the tune of Rs.11,03,303/. The factum of final order was intimated to the department requesting for refund of the said amount. However, the adjudicating authority passed an order dated 20.1.2017 observing that the appellant is not eligible for refund of Rs.8,13,869/- and sanctioned only part of the amount to the tune of Rs.2,89,487/-. In appeal, Commissioner (Appeals) upheld the same. Aggrieved, the appellant is now before the Tribunal.

2. On behalf of the appellant, ld. counsel Shri T.R. Ramesh submitted that the very same issue as to whether the appellant is eligible for credit of Rs.8,13,816/- was decided and the same was allowed in favour of the appellant. Further, the issue as to whether the appellant is eligible for refund of Rs.51,03,303/- as cash refund was considered by the Tribunal in the said final order. The department has not filed any appeal against the said final order and the adjudicating authority has wrongly held that the appellant is eligible only for part of the refund amount. He has thus not complied with the final order passed by the Tribunal. In fact, the adjudicating authority has no powers to readjudicate the matter which has been already decided by the Tribunal. It is also submitted by him that no show cause notice was issued to the appellant for raising the contention that the appellant is not eligible for refund of Rs.8,13,816/-.

3. The ld. AR Shri K.P. Muralidharan supported the findings in the impugned order. He adverted to the discussions in the Order-in-Original and submitted that the credit to the tune of Rs.8,13,816/- was already allowed to the appellant as transitional credit on 7.2.1996 and it was not reflecting in the credit balance when the assessee has opted out of the MODVAT scheme in March 2003. That this would mean that the appellant has utilized the credit of Rs.8,13,816/- and therefore the authorities below have rightly disallowed the refund.

4. Heard both sides.

5. At the outset, it has to be stated that the Tribunal vide Final Order No. 40880/2016 dated 3.6.2016, had categorically held that the appellant is eligible for cash refund of Rs.11,03,303/-. The relevant portion of the order is reproduced as under for better appreciation:-

'Heard both sides in the matter. The issue to be decided is as to whether the appellants are eligible for cash refund of Rs.11,03,303/- on account of credit under transitional provisions in terms of Rule 57H of erstwhile CER 1944. In this case, it is very clear that the appellants were prevented from taking of credit due to the objections from the department and the contention of the appellant that had the department granted refund in the year 1994 itself, the appellant would not have made the payment by cash from the PLA and due to the dispute being not settled for 16 years, the appellant cannot be denied of their benefit to cash refund. The appellant is now an SSI unit and their clearance are very much within the limits prescribed under the SSI.

xxxx xxxx xxxx xxxx xxxx

The authorities below have lost sight of the fact that cenvat credit is a beneficial legislation and disputes such as the one if allowed to continue would deprive the assessees, as in the instant case. In view of the foregoing discussions, I hold that appellant is entitled to cash refund. Accordingly, the appeal is allowed with consequential relief.'

6. It is thus seen that the Tribunal had considered the issue whether the appellant is eligible for cash refund to the tune of Rs.11,03,303/- and held that the same is eligible. The adjudication authority who is put to notice with regard to the order of the Tribunal has to then comply with the order and sanction the refund. He has no powers to enter into the issues which have already been decided by the Tribunal. Interestingly, the adjudication has happened by merely giving a personal hearing and not even issuing a show cause notice. Further, in para 1 of the order passed by the Tribunal, it is noted that the issue with regard to Rs.8,13,816/- was not contested by the department and after several rounds of litigation vide Order-inOriginal No.11/2003 dated 30.6.2003, the credit to the tune of Rs.2,89,487/- was disallowed and credit of Rs.2,61,996/- was allowed out of the total credit of Rs.56,68,245/-, which was under dispute in the said matter. The balance amount of Rs.54,06,249/- was ordered to be recovered and the credit of Rs.8,13,816/- was ordered to be adjusted against this balance amount. The ld. counsel submitted that the issue with regard to demand of Rs.54,06,249/- has attained finality wher

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ein the issue was held in favour of the appellant vide Order-in-Appeal No.47/2010 dated 4.8.2010 and therefore the question of adjustment of Rs.8,13,816/- does not arise. It is very much clear that the adjudicating authority as well as the Commissioner (Appeals) have floated the order passed by the 5 Tribunal by rejecting the refund claim of the appellant. To sum up, the partial rejection of refund is against the order passed by Tribunal and therefore cannot sustain. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
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