2004 (12) TMI 122 - AT - Central Excise

Tribunal grants appeal for excise duty refund, approves ex-post-facto refund, and rules in favor of appellant.

The Tribunal allowed the appeal, holding that the appellant was entitled to credit for excess excise duty paid and justified in taking a refund amount suo ... Refund - Suo motu refund - Provisional assessment Issues:1. Whether the appellant was entitled to take credit for excess excise duty paid before finalization of price between parties.2. Whether the appellant was justified in taking a refund amount suo motu.3. Whether the Commissioner (Appeals) erred in reopening the proceedings.Analysis:Issue 1:The appellant, a manufacturer of telephone equipment, made sales to the Department of Telecommunication (DoT) with provisional prices, leading to provisional central excise duty assessments. Upon finalizing prices with DoT, the appellant claimed credit for Rs. 5.5 lakhs, paid as excess excise duty due to higher provisional assessments. The Assistant Commissioner approved this credit, which was challenged by the Revenue before the Commissioner (Appeals). The Commissioner set aside the order, stating that provisional assessments should have been finalized first and any excess duty paid required a refund claim under Section 11B of the Act. However, the Tribunal found that the refund taken by the appellant was justified as it was due to them, and there was no case made by the Revenue that the refund was not warranted. Therefore, the Tribunal allowed the appeal, holding that reopening proceedings for finalizing provisional assessments would be fruitless.Issue 2:The Revenue contended that the appellant should not have taken a refund amount suo motu, citing a Tribunal decision in a similar case. However, the Tribunal found that the refund taken by the appellant was legitimate and had been approved ex-post-facto by the Assistant Commissioner after considering all aspects. The Tribunal noted that there was no argument presented by the Revenue that the refund was not owed to the appellant. Consequently, the Tribunal deemed the issue of eligibility to take suo motu refund as merely academic and allowed the appeal, setting aside the impugned order.Issue 3:The appellant argued that the original authority had correctly upheld the refund taken, and there was no need to reopen the proceedings as done by the Commissioner (Appeals). The Tribunal, after reviewing the records and hearing both sides, agreed with the appellant's submission. It noted that the refund had been rightfully taken and approved by the Assistant Commissioner, with no contention from the Revenue that it was not due. Therefore, the Tribunal found the repeat of proceedings to finalize provisional assessments as futile and set aside the impugned order, allowing the appeal.In conclusion, the Tribunal upheld the appellant's right to credit for excess excise duty paid and justified the appellant's suo motu refund claim, ultimately setting aside the Commissioner (Appeals) order and allowing the appeal.