2014 (8) TMI 977 - AT - Central Excise

Tribunal remits duty burden verification back to Adjudicating Authority following appeal disposition

BALMER LAWRIE & CO. LTD. Versus COMMISSIONER OF C. EX., KOLKATA-VI

The Tribunal set aside the impugned order and remitted the matter to the Original Adjudicating Authority for verification of whether the duty burden was ... Denial of refund claim - Provisional assessment - Bar of limitation - Held that:- The refund claim has been filed by the Appellant on account of revision/final fixation of sale price. It was denied to them on various grounds viz. the assessment was not provisional, refund claim was filed beyond the time-limit prescribed under Section 11B of the Central Excise Act, 1944, and also the Appellant failed to establish that the burden of excess duty has not been passed on to the customers, as required under Section 12B of CEA, 1944 - Appellant had failed to satisfy the Department that the excess duty paid by them at the time of clearance of the goods, had not been recovered from the customers, or in other words, the burden of duty has not been passed by the Appellant on to the customers, the contention of the assessee is that initially, the price of excisable product namely, synthetic oil, cleared to M/s. Bokaro Steel Plant, was provisionally fixed at ₹ 80/- per litre, but later it was reduced to ₹ 62.79 per litre. Basic fact of collection of the amounts shown in the respective invoices raised at the time of clearance of the goods, is disputed by the Appellant. The Appellant have placed before us a Chartered Accountant’s Certificate certifying that the Appellant had not collected the amounts shown in the invoices at the time of clearance of the goods. - Consequently, the impugned Order is set aside and the matter is remitted to the Original Adjudicating Authority, as consented by both sides, only for the limited purpose of examination/scrutiny of the issue whether the burden of duty has been passed on to the customers or otherwise. - Decided in favour of assessee. Issues Involved:1. Provisional Price and Final Price Adjustment2. Time-barred Refund Claim3. Provisional Assessment Requirement4. Passing of Duty Burden to CustomersIssue-wise Detailed Analysis:1. Provisional Price and Final Price Adjustment:The Appellant, engaged in the manufacture of 'Balmerol Aquaroll', initially cleared goods at a provisional price of Rs. 80/- per litre to M/s. Bokaro Steel Plant. The price was later finalized at Rs. 62.79 per litre. The Appellant claimed a refund for the excess duty paid based on the provisional price. The Appellant argued that the provisional nature of the initial price was evident from the purchase orders and that no payment was received from M/s. Bokaro Steel Plant until the price was finalized. Credit notes were issued for book adjustments, and a Chartered Accountant's Certificate was provided to support that no excess amount was collected. However, this certificate was not initially presented to the original authority.2. Time-barred Refund Claim:The Appellant filed the refund claim on 11-12-2002, which was returned for deficiencies on 5-3-2003. The deficiencies were rectified, and the claim was resubmitted on 12-6-2003. The Revenue argued that the claim was time-barred as it was complete only on 12-6-2003. The Tribunal found that the initial filing date of 11-12-2002 should be considered, as the cause of action arose on the date of duty payment, and the claim was filed within the stipulated one-year period under Section 11B of the Central Excise Act, 1944.3. Provisional Assessment Requirement:The Revenue contended that the refund was inadmissible as the assessment was not provisional. The Appellant argued that Section 11B allows for refund claims even if the assessment is not provisional, citing the Bombay High Court's decision in CCE, Nagpur v. Oriental Explosives Pvt. Ltd. The Tribunal agreed, stating that the provisional nature of the price, not the assessment, was relevant, and the refund claim was filed within the permissible time frame.4. Passing of Duty Burden to Customers:The Appellant contended that the excess duty was not passed on to M/s. Bokaro Steel Plant, as the final payment was made at the revised price of Rs. 62.79 per litre. The Revenue argued that the issuance of credit notes indicated that the duty burden was passed on to the customers, referencing the Tribunal's decision in Sangam Processors (Bhilwara) Ltd. The Tribunal noted that the Appellant disputed the collection of amounts shown in the invoices and provided a Chartered Accountant's Certificate to support their claim. This certificate was not reviewed by the lower authorities.Conclusion:The Tribunal set aside the impugned order and remitted the matter to the Original Adjudicating Authority for verification of whether the duty burden was passed on to the customers, considering the Chartered Accountant's Certificate and other evidences. The appeal was disposed of on these terms.