Refund arosed due to reduction of price subsequent to the clearence of goods as per the price variation clause in the purchase order. The tax litigation of M/s Apar Industries Ltd was handled by Shri Anand Mishra, Advocate,Amlegals .
The appeals were filed by the assessee as well as by the department .
Honourable Tribunal decided as below :
Issue 1 : Whether the refund claim was time barred ?
It was held that original date of submission will be actual date for filing a refund claim . Re-submission date cannot be considered actual date for filing a refund claim .
Issue 2: Whether a specific amount of refund if withdrawn by the assessee at its own ,can again be revived ?
It was held in negative
Issue 3 : Whether unjust enrichment is applicable ?
It was kept open on the basis of relied upon case laws ,while remanding the issue.
Issue 4 :Whether Commissioner(appeals) has power to remand ?
It was held in affirmative that Commissioner(appeals) still has power to remand .
The said order is produced herein below .
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad
[Arising out of OIA No.SA/96/Vapi/2011, dt.28.06.2011, passed by Commissioner (Appeals), Central Excise & Service Tax, Vapi]
M/s Apar Industries Ltd Appellant
Commissioner, Central Excise & Service Tax,
Commissioner, Central Excise & Service Tax,
M/s Apar Industries Ltd Respondent
For Assessee: Shri Anand Mishra, Advocate
For Revenue: Shri Alok Srivastava, Authorised Representative
For approval and signature:
Honble Mr. P.K. Das, Member (Judicial)
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL)
Date of Hearing/Decision:26.03.2015
Order No.A/10278-10279/2015, dt.26.03.2015
Per: P.K. Das
1. The relevant facts of the case, in brief, are that the assessee is engaged in manufacture of Aluminum Conductors. They procured purchase orders from different buyers for supply of Aluminum Conductors. There was price variation clause in the purchase order. They were issuing supplementary invoices for the goods already cleared and paid proper duty on such supplementary invoices. In the case of reduction of price, they have already paid excess duty of Rs.33,51,793.00, filed a refund claim on 12.04.2010. The Superintendent of Central Excise, returned the refund claim due to lack of certain documents. The assessee re-submitted the refund claim on 29.09.2010. Subsequently, by letter dt.25.10.2010, the Appellant requested to withdraw the refund claim of Rs.6,47,473.00 as they had no documentary evidence and requested to sanction the remaining amount of Rs.27,04,323.00.
2. A show cause notice dt.04.11.2010 was issued, proposing to reject the refund claim of Rs.33,51,796.00 filed on 29.09.2010 for the period June 2009 to March 2010 as time barred. Adjudicating authority rejected the refund claim filed by the assessee. By the impugned order, the Commissioner (Appeals) modified the Adjudication order in so far as the rejection of refund claim of Rs.19,26,095.00 was upheld as time barred and the amount of Rs.6,47,473.00 was upheld as the assessee already withdrawn this amount by their letter dt.25.10.2010. It was directed to the Adjudicating authority to decide the refund claim on merit in respect of the balance amount. The assessee filed this appeal against the impugned order in so far the rejection of refund claim as time barred and the amount of Rs.6,47,473.00 as withdrawn. Revenue filed the appeal on the ground that the Commissioner (Appeals) has no power to remand this matter.
3. After hearing both the sides and on perusal of the records, I find that the assessee filed refund claim on 12.04.2010 which was returned by the Range officer on 29.04.2010 as there were no sufficient documents. The assessee again resubmitted the claim on 29.09.2010. According to the Commissioner (Appeals), the date of resubmission of refund claim is to be considered as actual date of filing of the refund claim.
4. I am unable to agree with the findings of the Commissioner (Appeals). In this connection, the learned Advocate drew the attention of the Bench to the relevant letter issued by Superintendent, Central Excise. The Range Officer requested the Appellant to provide several documents, and thereafter the assessee resubmitted the refund claim with all the documents as directed by the Range Officer. The Tribunal in the case of Indra Processors Vs Commissioner, Central Excise, Jallandhar – 2009 (236) ELT 164 (Tri-Del) held that resubmission of refund claim was at the instance of Central Excise officers and therefore, the date of filing of refund claim would be taken into consideration for the purpose of limitation. I find that the assessee filed refund claim within the stipulated period. On perusal of the letter dt.29.04.2010 of the Range Officer, it is seen that the Range Officer returned the papers on the ground that it is not possible to process to refund claim in the absence of the documents as mentioned therein and the assessee was directed to do the needful. Hence, the Commissioner (Appeals) erroneously accepted the date of filing of the refund claim is on 29.09.2010.
5. Regarding the rejection of refund claim of Rs.6,47,473.00, I find force in the contention of the learned Authorised Representative for the Revenue. The learned Advocate submitted that the said amount was included in the Customers certificate dt.22.04.2011. I find that the assessee by letter dt.21.10.2010 had categorically requested to withdraw the amount of Rs.6,47,473.00 as they had no documentary evidence. In the certificate dt.22.04.2011, I do not find any specific mention of this amount. Hence, both the authorities below has rightly rejected the refund claim of Rs.6,47,473.00.
6. Revenue filed the appeal on the ground that the Commissioner (Appeals) has no power to remand this case. Learned Authorised Representative relied upon the decision of Honble Supreme Court in the case of M/s Mil India Ltd Vs Commissioner, Central Excise, Noida – 2007 (210) ELT 188 (SC). Learned Advocate placed reliance on the decision of the Tribunal in the case of Bacha Motors (P) Ltd Vs Commissioner of Service Tax, Ahmedabad – 2010 (255) ELT 530 (Tri-Ahmd). I find that the Tribunal in the case of Bacha Motors (P) Ltd held that the Commissioner (Appeals) has power to remand the matter. It has also considered the decision of the Honble Supreme Court in the case of Mil India Ltd (supra). The relevant portion of the said decision is reproduced below:-
4.?It was also submitted that in several decisions of the Tribunal, reliance was placed on the decision of Honble Supreme Court in the case of M/s. MIL India Ltd. – 2007 (210) E.L.T. 188 (S.C.) to support the view that the Commissioner has no power to remand. After considering all these decisions, I find that in the case of M/s. MIL India, the main issue before Honble Supreme Court was entirely different and hence it was only observation during the course of discussion of the issue wherein Honble Supreme Court mentioned about the amendment of the Section. It cannot be said that Honble Supreme Court laid down the law in that case. Whereas in the case of M/s. Medico Lab, Honble Gujarat High Court was dealing with the issue of remand only and after considering the issue in detail, Honble High Court had come to the conclusion that the Commissioner has powers to remand. In view of the fact that there are contradictory decisions of the Tribunal and other than the decision of Honble High Court of Punjab & Haryana there is no other decision holding a contrary view to that of Honble Gujarat High Court in Medico Lab, I conclude that as far as Gujarat State is concerned, the decision of Honble Gujarat High Court is binding and accordingly Commissioner has power to remand the matter and therefore no interference is called for.
7. In view of the above discussion, I do not find any merit in the appeal filed by the Revenue and accordingly the appeal filed by the Revenue is rejected. In the appeal filed by the assessee, the impugned order is modified to the extent that the rejection of refund of Rs.19,26,095.00 as time barred is set aside. The Adjudicating authority is directed to decide this matter as per the direction of Commissioner (Appeals) and sanction the refund claim except the rejection of refund of Rs.6,47,473.00, which is upheld. Learned Advocate placed several decisions in respect of unjust enrichment. The Adjudicating authority is directed to decide this matter on merit as well as unjust enrichment and would take into consideration the case laws as relied upon by learned Advocate. The appeal filed by the assessee is partly allowed.
(Dictated & Pronounced in Court)
Anand Mishra, Founder Advocate, AMLEGALS
( The author is a leading indirect tax advocate handling cases in CESTAT & High Courts of India. He can be contacted on firstname.lastname@example.org and for more please refer www.amlegals.com . )