2019 (4) TMI 119 - AT - Central Excise

Tribunal remands appeal for re-adjudication within parameters of SCN, considers case laws and appellants' contentions.

The Tribunal allowed the appeal by way of remand, directing the original authority to re-adjudicate the matter within the parameters of the related SCN. ... Scope of SCN - Refund of amount paid under protest - case of Revenue is that Ld. Commissioner (Appeals) committed serious error of law in making out a new case for the Revenue, which was neither setup in the SCN or adjudication order, that the claim for refund is premature and ill-advised and that the Asst. Commissioner sat in judgment over the direction of the Commissioner of Central Excise - Held that:- The lower appellate authority has indeed gone beyond the parameters of the SCN - The SCN dated 16.11.2010 had not gone into the eligibility of the appellant to file the claim nor had it delved into the discrepancies found by the Commissioner (Appeals) in paragraphs 4.2 to 4.5 of the impugned order. In effect, the SCN has not found fault with the filing of refund claim but has only proposed rejection of the claim predominantly on the ground that even if the goods impugned ie., inputs and capital goods have not been physically removed out of the factory, the work “removal” in Rule 3 (5) of CCR cannot be given a meaning merely “restricted to the physical removal of the goods”. The SCN made a proposition that the appellant has discharged their duty liability by way of reversal of credit and they are very much in order and as such there cannot be any refund claim. The adjudicating authority also has closely followed the contours of the SCN. The matter requires to be addressed once again by the original authority - appeal allowed by way of remand. Issues:1. Rejection of refund claim under Section 11 B of the Central Excise Act, 1944.2. Premature refund claim as per the Commissioner (Appeals).3. Competence of the Commissioner (Appeals) to reject the claim on new grounds.4. Unjust enrichment and burden of duty.5. Compliance with principles of natural justice in passing directions.6. Interpretation of Rule 3(5) of Cenvat Credit Rules, 2004.7. Application of case laws in determining the appeal outcome.Analysis:1. The case involved the rejection of a refund claim under Section 11 B of the Central Excise Act, 1944. The appellant had sold their Petroleum Dispensing Pumps & Systems Unit (PDP) to a new owner under a Business Transfer Agreement (BTA). The duty liability of the PDP unit was discharged by reversing the credit in respect of inputs and capital goods transferred under the BTA. The appellant filed a refund claim, contending that duty liability arises only upon physical removal of goods, which did not occur in this case.2. The Commissioner (Appeals) held the refund claim as premature, stating that it was filed before the Asst. Commissioner and that the Asst. Commissioner could not sit in judgment over the direction of the Commissioner. The lower appellate authority upheld the order, emphasizing the premature nature of the claim. The appellant challenged this decision, arguing that the claim was not premature and was admissible, citing legal precedents to support their position.3. The appellant contended that the Commissioner (Appeals) erred in making a new case for the Revenue not raised in the SCN or adjudication order. The appellant argued that the Commissioner overstepped the scope of the appeal and went beyond the issues framed in the SCN. Legal authorities were referenced to support the argument that no new case should be made beyond what was presented in the initial proceedings.4. The issue of unjust enrichment was raised, with the appellant asserting that the burden of duty was not passed on to the buyer, and therefore, the claim should not be rejected on these grounds. The appellant highlighted that the new buyer did not claim the cenvat credit of the duty paid by the appellant under protest.5. Concerns were raised regarding compliance with principles of natural justice in passing directions related to duty liability. The appellant argued that the directions issued were contrary to law and passed without affording any opportunity of hearing, making them null and void.6. The interpretation of Rule 3(5) of Cenvat Credit Rules, 2004 was central to the case. The appellant argued that the term 'removal' in the rule should not be restricted to physical removal of goods and that the duty liability should not arise solely based on the change of ownership without physical movement of goods.7. The Tribunal allowed the appeal by way of remand, directing the original authority to re-adjudicate the matter within the parameters of the related SCN. The original authority was instructed to consider relevant case laws and contentions of the appellants in their reply to the SCN to reach a decision on the refund claim.