3. Assistant Commissioner, Central Excise, Division-I, Ahmedabad … · · 2013-01-07Assistant...
Transcript of 3. Assistant Commissioner, Central Excise, Division-I, Ahmedabad … · · 2013-01-07Assistant...
9 F.No: V2(16)103/Ahd-I/12
3. Assistant Commissioner, Central Excise, Division-I, Ahmedabad-1
O.-- The Superintendent (System) Central Excise, H.Q Ahmedabad-1 fori uploading
the order on website.
5. PA to Commissioner (Appeals-V)
6. Guard File
8 F.No: V2(1thd - 1/12
refund claim was filed by the appellant for the period from 1986-87 to 14.04.1989.
Aggrieved with the 01A, appellant had preferred an appeal bearing No. E/1091/07 to
CESTAT only in respect of the amount of refund which was ordered to be credited in
RG23A Part-II account and not refunded in cash. The issue of interest was not agitated
before CESTAT, hence the issue has reached finality and the same cannot be agitated
before me as the order has become `non-est' with the appeal filed. Once the
Commissioner (Appeals) has taken a view and same is not set aside by higher authority, I
being the same authority cannot review the same unless the same is agitated and set
aside by higher authority. In view of the above, there is no reason for me to interfere
with the impugned order. The citations in the case of Indu Nissan Oxo Chem.Indus.Ltd.,
reported in 2007(211) ELT 254 and 2011-TIOL-105-SC-CX in the case of Ranbaxy
Laboratories Ltd does not help appellant and the appeal is liable to be set aside.
Order
7. I therefore uphold the impugned order and reject the appeal.
(ANIL KUMAR)
COMMISSIONER (APPEALS-V),
CENTRAL EXCISE, AHMEDABAD.
ATTESTED Date .31 /12/2012
(S.J. Dias) 31 b2-')24"/2----
SUPERINTENDENT (APPEALS-V) CENTRAL EXCISE, AHMEDABAD-I.
To
M/s Cadila Veterinary,
C/o Cadila Healthcare Ltd,
Plot No 417-419, 420 (Part),
National Highway No.8A, Sarkhej Bavla Road,
Village Moriaya, Tal Sanand,
District Ahmedabad
Copy to:
1. The Chief Commissioner, Central Excise, Ahmedabad Zone, Ahmedabad 2. The Commissioner of Central Excise, Ahmedabad-I,
7 F.No: V1 2(16Ahd-I/12
"However, from the records, I do find that out of the total duty aid, an amount
of Rs.19,38,750/-was paid through modvat account. In the clai paper also the
appellant had declared that they had paid duty through RG-23 part-II account.
Therefore this amount cannot be refunded in cash. The RG-23 art-II account is
not a bank account nor that register is a pass book. Therefore, d ty debited from
this account in terms of modvat scheme and the rules made there under cannot
be refunded in cash. Such credit ought not have been utilized towards payment
of duty for those products which in law are finally treated as exempt. At best this
amount can be raised in their modvat account for subsequent use if otherwise
admissible and which would be according to law. I do n agree to the
arguments of the learned advocate on this point that for recovering inadmissible
credit, separate proceeding should be initiated in terms of
assessment is so inter-related that it had to be restored
Rule 57 I. The
on account of
finalization of on going dispute. It is not only collateral, rather is fully inter-
connected with the issues. Since there was no provision for interest prior to
1995, the interest amount is not admissible to the appellant for such claims.
The amount of Rs.1,83,274/- have also to be deducted as had keen worked out
in the report of D.C. dated 5.8.02 and for which the appellant hlad agreed. Thus,
the refund amount admissible for payment in cash would be Rs.63,48,964/- and
the amount of Rs.19,38,750/- by way of raising credit in RG-23 Part-11 account.
Before parting with the case, I should not fail to observe that very long time
had been consumed in not sanctioning the rightful claims f the assessee,
therefore, now no time say more than 2 moths should be cons med in drawing
and paying the amount to the appellant on part of the lower authority."
6.3. On going through the above order, I find that the entire refund claim amounting
to !84,70,988/- arising out of 010 No 158-R and 159-R both dat d 19.11.98 was
decided by the Commissioner (Appeals)'s order issue vide OIA No.285 2007(Ahd) dated
22.6.07. Out of this' 1,83,274/- was deducted and '63,48,964/- wa allowed by cash
and '19,38,750/- was allowed by raising credit in RG-23 Part-II accoun . In present case
before me the appellant had filed refund claim of Z 44, 28, 444/- as ai interest for the
delayed payment of refund of Z 63, 48, 964/- sanctioned vide 010 No.29/AC/2007/Ref.
dated 24.10.2007 from the period of 19.02.1999 till 24.12.2007. I ind the issue of
interest on this amount was already decided by the Commissioner Appeals)'s order
(supra) that there was no provision of interest prior to 1995. I find that the original
6 F.No: V2(16kAhd-I/12
3. There after the appellant filed refund claim of 49, 31, 319/- as an interest for
the delayed payment of refund of 63, 48, 964/- sanctioned vide 010
No.29/AC/2007/Ref. dated 24.10.2007 from the period of 19.02.1999 till
24.12.2007.The claim of the appellant was rejected by the adjudicating authority vide
the impugned order under the provisions of Section 11B of the Central Excise Act, 1944.
4. Aggrieved by the impugned order the appellant has filed the present appeal on
the following grounds
• That the impugned order is incorrect and not maintainable.
• That the once the appeal was allowed and matter remanded back the
effect is as if the order does not exist.
• That the adjudicating authority has erred in denying the interest on refund
as the refund is admissible within three months from the date of
application is made and does not relate on the date which duty demand
relates. Though Section 11BB comes into effect from 1995 application for
refund in the present case was made much after 1995 i.e. on
14.08.1998.Thus contention taken by the Commissioner (Appeals) that
interest cannot be provided as there is no provision of interest prior to
1995 is incorrect and not maintainable in law. They also relied upon
decision in the case of Indu Nissan Oxo Chem.Indusltd., reported in
2007(211) ELT 254.
5. Personal hearing in the matter was held on 08.11.2012 & 27.12.2012.The
appellant appeared before me and reiterated the grounds of appeal on 27.12.2012.They
reiterated submission made by them and gave written submission and copy of citation
2011-TIOL-105-SC-CX in the case of Ranbaxy Laboratories Ltd.
6. I have gone through the facts on record, the appellant's submissions and my
findings are given below.
6.1. The issue before me is whether the appellant is entitled for the interest for
delayed refund claim?
6.2. I find that the issue of interest was already decided by Commissioner (Appeals)'s
order issue vide OIA No.285/2007(Ahd) dated 22.6.07. For sake of ease the Para No.25 is
reproduced as under:
1 03
5
F.No: VV16kAhd-I/12
appellant has filed appeal before Commissioner (Appeals) and the said authority has
decided the issue vide OIA No.285/2007(Ahd) dated 22.6.07. Complying he said OIA the
Assistant Commissioner sanctioned the refund claim of 263,48,964
allowed Z 19,38,750/- by way of Credit in RG 23 Part II acc
no.29/AC/REF/2007 dated 24.10.2007. Being aggrieved with the OIA N o
dated 22.6.07, the Department again filed appeal before Hon'ble
appellant also filed an appeal before Hon'ble CESTAT challenging the o r
Commissioner allowing the credit in RG 23 Part II account. CES
No.A/1100-1101/WZB/AHD/2008 dated 27.05.2008 held as under:
- in cash and
unt vide 010
285/2007(Ahd)
ESTAT and the
der of Assistant
AT vide Order
of M/s. Guari t there is no bar ssee is able to
if disputed duty out of the PLA
ing Authority to
fund claim of ight of the law gly, appeal filed al is rejected."
"We note that the Larger Bench of the Tribunal in the cas
Plasticulture (P) Ltd. [2006 (202) E.L.T. 199 (Tri.-LB)] has held th in allowing the refund of such credit in cash provided the ass establish that on account of the use of such credit for payment and now refunded amount, they were compelled to pay the du during the period. As such, we would like the original Adjudica verify the above aspect and then decide the issue pertaining to r 19, 38,750/- ordered to be credit in modvat account, in the declared by the Larger Bench in the above referred case. Accordi
by the assessee is allowed by way of remand and Revenue's app
2.1. Complying the order of CESTAT, the original adjudicating au hority vide 010
No.13/AC/Refund/09 dated 22.9.09 has disallowed the refund and upheld the earlier
Order No. 29/AC/2007/Ref dated 24.10.07 of Assistant Commissioner f Central Excise,
Division-I, Ahmedabad-I under section 11B of the Central Excise Act,19
2.2. Aggrieved by the above 010 the appellant had filed appeal with the
Commissioner (Appeals) against the said 010 and the appellate autho
123/2010 (Ahd-I) dated 30.04.2010 set aside the said order and allowe
by appellant. Complying the order OIA No. 123/2010 (Ahd-1) dated
original adjudicating authority vide 010 No.15/AC/Refund/10 dated 2 2
the refund of Z 19, 38, 750/- in cash.
ity vide OIA No.
the appeal filed
30.04.2010, the
12.2010 granted
2.3. The Tax Appeal No.1841 of 2008 filed by the Department ag
Order No.A/1100-1101/WZB/AHD/2008 dated 27.05.2008 and is pre
the High Court of Gujarat. Similarly Appeal No.E/1204/2010 dated 30. 0
the Department against the OIA No. 123/2010 (Ahd-I) dated 30.04
presently pending with Hon'ble CESTAT.
inst the CESTAT
ently pending in
7.2010 is filed by
2010 and is also
4 F.No: V2(16)Ahd-1/12
ORDER-IN-APPEAL
The present appeal has been filed by M/s Cadila Veterinary, 244,
Godasar, Maninagar, Ahmedabad (hereinafter referred to as the appellant) against 010
N015/AC/Refund/2008 dated 31.12.2008 (hereinafter referred to as the impugned
order), passed by the Assistant Commissioner, Central Excise, Division-I, Ahmedabad —1
(hereinafter referred to as the adjudicating authority).
2 Briefly stated that facts of the case are that the appellant were engaged in the
manufacture of excisable goods viz Animal Feed Supplements falling under Chapter 23
of the CETA attracting duty at nil rate. The said product was provisionally assessed and
the classification thereof finalized vide 010 No. 13/97 dated 10.7.97 under Chapter 29 of
the said act. Aggrieved thereupon, the appellant had filed an appeal before
Commissioner(Appeals) and, the said appellate authority vide 010 No. 76/98 held the
classification of the said product under Chapter 23 of the said act attracting Nil rate of
duty. Accordingly, the appellant had filed two refund claims for duty paid by them
under protest. However, the Jurisdictional AC had rejected both the claims vide 010 No
158-R and 159-R both dated 19.11.98 for 77,24,928/- & 7,46.060/- totaling to
284,70,988/- . The appellant again approached Commissioner (Appeals) against the said
010s, and the said appellate authority vides OIA No. 1046-1047/02 dated 21.8.02
allowed the appeals with consequential relief. Department had filed appeal before
Hon'ble CESTAT against the order passed by the said appellate authority. Hon'ble
CESTAT vide Order No.11/2201-02/WZB/2003 dated 29.8.03 remanded back the matter
to the adjudicating authority for deciding the case afresh. Thereafter, the case was
decided in denovo proceedings by original adjudicating authority vide 010
No.40/2004/DA/Ref dated 26.3.04 rejecting the refund claim. The appellant again filed
appeal with Commissioner (Appeals) against the said 010 and the said appellate
authority vide OIA No. 89/2005(Ahd-I) dated 6.5.05 has set aside the order and
remanded back for denovo. Thereafter, the appellant filed SCA No.22466/2006 in the
Hon'ble High Court of Gujarat. The Hon'ble Court vide order dated 5.2.07 has directed
the original authority to comply with the directions of Tribunal and Commissioner
(Appeals) and give fresh findings within two months. As per the direction of Hon'ble
Court the original authority again decided the matter by rejecting the claim vide 010
No.08/2007/AC/Ref dated 29.3.07 wherein it was held that in absence of any other
evidence except the invoices showing the composite price, cannot be made the basis for
holding that incidence of duty has not been passed on. Again aggrieved upon 010, the
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To the west regional bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) at 0-20, New Metal Hospital Compound, Meghani Nagar, Ahmedabad : 380 016. in case of appeals other than as mentioned in para-2(i) (a) above.
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The appeal to the Appellate Tribunal shall be filed in quadruplicate in orm EA-3 as prescribed under Rule 6 of Central Excise(Appeal) Rules, 2001 and shall be ac ompanied against (one which at least should be accompanied by a fee of Rs.1,000/-, Rs.5,000 - and Rs.10,000/- where amount of duty / penalty / demand / refund is upto 5 Lac, 5 Lac to 5 Lac and above 50 Lac respectively in the form of crossed bank draft in favour of Asstt. Reg star of a branch of any nominate public sector bank of the place where the bench of any nominate public sector bank of the place where the bench of the Tribunal is situated. Application ma for grant of stay shall be accompanied by a fee of Rs.500/-.
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In case of the order covers a number of order-in-Original, fee for each O.I.O. should be paid in the aforesaid manner not withstanding the fact that the one appeal to he Appellant Tribunal or the one application to the Central Govt. As the case may be, is filled to avoid scriptoria work if
excising Rs. 1 lacs fee of Rs.100/- for each.
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One copy of application or O.I.O. as the case may be, and the o der of the adjournment authority shall beer a court fee stamp of Rs.6.50 paise as prescribed nder scheduled-I item of the court fee Act, 1975 as amended.
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Attention in invited to the rules covering these and other related matter contended in the Customs, Excise & Service Tax Appellate Tribunal (Procedure) Rules, 1982.
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In case of rebate of duty of excise on goods exported to any country or territory outside India of on excisable material used in the manufacture of the goods which are exported to any country
or territory outside India.
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(d) Credit of any duty allowed to be utilized towards payment of excise duty on final products under the provisions of this Act or the Rules made there under and such order is passed by the Commissioner (Appeals) on or after, the date appointed under Sec.109 of the Finance (No.2)
Act, 1998.
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The above application shall be made in duplicate in Form No. EA-8 as specified under Rule, 9 of Central Excise (Appeals) Rules, 2001 within 3 months from the date on which the order sought to be appealed against is communicated and shall be accompanied by two copies each of the 010 and Order-In-Appeal. It should also be accompanied by a copy of TR-6 Challan evidencing payment of prescribed fee as prescribed under Section 35-EE of CEA, 1944, under Major Head of Account.
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The revision application shall be accompanied by a fee of Rs.200/- where the amount involved is Rupees One Lac or less and Rs.1,000/- where the amount involved is more than Rupees One
Lac.
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Appeal to Custom, Excise, & Service Tax Appellate Tribunal.
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Under Section 35B/ 35E of CEA, 1944 an appeal lies to
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(a) the special bench of Custom, Excise & Service Tax Appellate Tribunal of West Block No.2, R.K. Puram, New Delhi-1 in all matters relating to classification valuation and.
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Stay App.:
3TtF 3.TFT ' -i•--LI I Order-In-Appeal No.123/2012(Ahd-1)CE/AK/Commr(A)/Ahd
ft-42rT Date :28.12.2012 7t cf-P') 4 -ffitR31 Date of IssUe (7 I CI . ?",C6
41 31f4g Tdiii_z-TrEfor (3T -V) TAT zrrf -
Passed by Shri. Anil Kumar, Commissioner (Appeal-V)
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Arising out of Order-in-Original No.15/Ac/Refund/2008 Dated . 31.12.2008
Issued by: Assistant/Deputy Commissioner,Central Excise,Divlision - I Ahmedabad-I.
u 30)rict)c11 4)1 9P1 krq uldl Name & Address of the Appellant / "espondent
M/s Cadila Veternary Ltd.
Ahmedabad
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Any person a aggrieved by this Order-In-Appeal may file an appeal or revision application, as the one may be against such order, to the appropriate authority in the following way :
49TR-d st-Nct)N alur Revision application to Government of India :
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(i)A revision application lies to the Under Secretary, to the Gov . of India, Revision Application Unit
Ministry of Finance, Department of Revenue, 4 th Floor, Jeevan Deep Building, Parliament Street, New
Delhi - 110 001 under Section 35EE of the CEA 1944 in respect of the following case, governed by first
proviso to sub-section (1) of Section-35 ibid :
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(ii)In case of any loss of goods where the loss occur in transit from a factory to a warehouse or
to
another factory or from one warehouse to another during the course of processing of the goods in a
warehouse or in storage whether in a factory or in a warehouse.
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