The Kolkata Bench of Customs, Excise and Service Tax Appellate Tribunal(CESTAT) upheld the commissioners order allowing refund as the excise duty refund rejected without verifying invoice showing double duty payment. The Tribunal found that the Commissioner(Appeals) passed the order after verifying all the issues regarding the clearance of the goods in question and payment of duty thereof and considering the Affidavits filed by the customers as well as transporters’ gate passes etc., It was evident that the respondent has paid duty twice for the same goods.
M/s. Tata Growth Shop, the respondent was engaged in the activity of manufacturing of heavy machines and equipment thereof. After manufacturing of the equipment/machines the respondents informs their customer to take delivery of the same and issues invoices as soon as the goods were manufactured and approved by the customers. Thereafter, the respondent paid excise duty and machines and equipments were transferred to the dispatch section.
During the period January 2010 to March 2010, the respondent issued 559 invoices for clearance of machines/equipment to the customers which could not be cleared due to unavailability of transport or at the request of the customers to hold the goods for some time. However, the respondent paid the excise duty thereon in February 2010 and March 2010.
An investigation was conducted on 15.04.2010 with respect to such goods where original copies of 559 invoices were seized. On 24.05.2010 the respondent intimated that the differential duty has been paid as duty has been increased from 8 to 10% w.e.f. 20.06.2010 on the said invoices on 04.06.2010.
The respondent made a request to release the seized invoices so that the machines/equipments could have been cleared. During July 2010 to December 2010, the respondent cleared those goods on issuance of 559 invoices afresh and paid duty again. As the respondent paid duty twice the respondent filed refund claim of excess duty paid on the goods twice. A show cause notice dated 15.01.2011 was issued to the respondent to deny the refund on the allegation that neither the respondent cancelled the invoices nor intimation was given regarding cancellation thereof, therefore, no duty has been paid twice.
On appeal, the Commissioner(Appeals) sanctioned the refund claim, but the matter was remanded to the adjudicating authority for verification of the fact that whether the respondent has passed the bar of unjust enrichment or not.
The department argued that the Commissioner(Appeals) failed to appreciate the fact that from the scrutiny of ER-1 as submitted for the month of January, February & March 2010, it is revealed that no extra amount of excise duty have been self assessed and paid appropriately by the assessee for the clearances shown in the respective months.
The Tribunal found that the Commissioner(Appeals) passed the order after verifying all the issues regarding the clearance of the goods in question and payment of duty thereof and considering the Affidavits filed by the customers as well as transporters’ gate passes etc., It was evident that the respondent has paid duty twice for the same goods.
A two member bench of Shri Ashok Jindal, Member(Judicial) and Shri K Anpazhakan, Member(Technical) held that the Commissioner(Appeals) has rightly sanctioned the refund claim subject to verification of the issue of bar of unjust enrichment by the adjudicating authority.
The CESTAT upheld the order and the appeal filed by the Revenue is dismissed.
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