2009 (2) TMI 659 - AT - Customs

Tribunal rejects revenue's stay application, orders refund due to excess duty collection. Commissioner criticized for misinterpreting guidelines.

The Tribunal rejected the revenue's application for stay on the calculation of Education Cess in a Stay Petition. Appeals against Order-in-Appeal were ... Education cess - Calculation of Issues:Calculation of Education Cess in a Stay Petition, Appeals against Order-in-Appeal, Interpretation of CBEC D.O. F. No. 334/3/2004-TRU, Mistake in collection of countervailing duty, Refund of excess collection, Remand of the matter to the Commissioner (A).Analysis:1. Calculation of Education Cess in a Stay Petition:The Stay Petition in question pertained to the calculation of Education Cess. The Tribunal found no merit in staying the impugned order related to this issue. Consequently, the revenue's application for stay was rejected. The appeal was scheduled for a joint hearing with other appeals by the assessee.2. Appeals against Order-in-Appeal:Several appeals were filed against Order-in-Appeal No. 501-504/2007 and Order-in-Appeal No. 158-166/2006. Due to a common issue, these appeals were collectively disposed of through a common order by the Tribunal.3. Interpretation of CBEC D.O. F. No. 334/3/2004-TRU:The learned SDR argued that the calculation of Education Cess should adhere to the guidelines outlined in CBEC D.O. F. No. 334/3/2004-TRU dated 8-7-2004. Specifically, reference was made to Para 3.1 concerning the calculation of imported goods. The Commissioner (A) was criticized for allegedly misinterpreting the Board's instructions in allowing the respondent's appeal.4. Mistake in Collection of Countervailing Duty:The Commissioner (A) was noted to have found an error in the collection of countervailing duty, where Education Cess was charged twice - initially on the countervailing duty and then on the total of countervailing duty, Education Cess, and basic duty. This led to an excess collection in multiple cases, which the Commissioner (A) directed to be refunded upon verification.5. Refund of Excess Collection:Given the identified over-collection of countervailing duty, the appeals were allowed, with a directive to refund the excess amounts collected. However, the Tribunal emphasized the need for proper verification of the refund amounts before disbursal.6. Remand of the Matter to the Commissioner (A):Upon review, the Tribunal observed that the Commissioner (A) had not considered the Board's Circular from 2004 in the decision-making process. Consequently, the impugned orders were set aside, and the matter was remanded to the Commissioner (A) for reconsideration after affording the respondent an opportunity to present their case. All appeals were allowed on the basis of remand, ensuring a fair hearing and decision-making process.This comprehensive analysis of the judgment highlights the key issues addressed by the Tribunal and the subsequent decisions made in relation to each issue.