TaxTMI 
TaxTMI 
2024 (3) TMI 1226
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....21 (SC)], whereas the appellant's contention was that their case is covered by the subsequent judgment of the Hon'ble Supreme Court in the case of Ispat Industries Ltd [2015 (324) ELT 670 (SC)], wherein it was held that the buyer's premises can never be the place of removal as the goods have to be sold after removal. The place of removal under Sec 4 of Central Excise Act has necessarily to be relatable to the premises of seller such as the factory of the assessee/ its depots or warehouses or place of its consignment agents. The said issue has already been decided in favour of the assessee in the appellant's own case by this Tribunal, vide Final Order No. A/3012430127/2022 dt.28.11.2022. 2. The dispute in this appeal is regarding the amounts paid totaling to Rs.4,22,85,418/- for the period 2014-15, April 2015, May 2015 and 1.6.2015 to 8.6.2015. During this period the appellant had not included the value of freight between factory and the buyer's premises while paying central excise duty but had subsequently paid the following amounts through challans as arrears: Year Challan No. & date Freight (Rs.) Excise duty (Rs.) Interest (Rs.) Total (Rs.) 201....
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....is case the amounts have not been appropriated and therefore they can only be considered as deposits and cannot be considered as duty. Since, no show-cause notice was issued to recover the differential duty, the amounts in dispute can only be considered as deposits. For this reason, the limitation prescribed under Section 11B for refund does not apply to this case. 8. We also consider the submissions of the learned authorized representative for the Revenue that judgment of Hon'ble Supreme Court in the case of ITC Ltd applies to this case. In ITC Ltd the Hon'ble Supreme Court dealt with a bunch of cases where duties were paid during the course of assessment and without assailing such assessments (some of which were self-assessments) claims for refund was filed. Hon'ble Supreme Court held that an assessment, including self-assessment attains finality and needs to be appealed against before a Higher Judicial Forum and without such an appeal or modification otherwise of the assessment, no refund can be sanctioned. In the present case, the amounts were not paid during the course of assessment but were paid subsequently. Learned counsel has, after consulting the appellant confir....
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....ble in the Court and only after checking this fact with this official, the Learned Counsel has made his submission about non-filing of ER-1 Returns. Further, as the said amounts in question i.e. (refund involved) was not shown in the normal course of self assessment tax, but the same was shown in a different column at serial no. 9 of the ER-1 Return (Arrears), the Appellant carries impression that this amount was not paid on account of any self assessment and hence such an assertion was made before the Hon'ble Bench. He submits that as can be observed from Para 7, the Bench has observed that these amounts were paid during enquiry (post clearance, after filing of return) and no Show Cause Notice was issued under Section 11A towards appropriation of this amount. Therefore the decision of the Bench would not have been different even if it is considered for a moment that the fact of non-filing of ER-1 was erroneously represented and noted in the Final Order. 6. This Tribunal, after considering the rival contentions, was pleased to allow the ROM Application, recalling the Final Order No. A/30004/2023 dt.10.01.2023 for re-hearing, observing as follows: "6. A careful reading o....
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.... period April 2014 to June 2015, subsequently in June/July 2015. The said refund claim for the balance amount of Rs.4,22,85,418/- was rejected vide OIO dt.07.11.2016, observing that the ruling of Ispat Industries is not applicable and the refund claim has been filed after more than one year of payment/deposit. In appeal filed by the assessee, the Commissioner (Appeals), vide OIA dt.31.08.2017 held that in view of the terms and conditions of the purchase order in the instant case, the goods are to be delivered at the buyer's premises; acceptance of the goods at customer's place; ownership of goods rests with the seller/supplier/assessee till the goods are received and accepted at the buyer's place; any loss due to breakage/damage etc., is borne by the supplier/assessee; seller is liable to VAT on sale value inclusive of freight. However, this issue stands already concluded in favour of the appellant/ assessee, vide Final Order dt.10.01.2023 of this Tribunal, and was not disputed in the ROM filed by Revenue. 9. So far the question of refund is concerned, learned AR for Revenue urges that the said amount of Rs.4,22,85,418/- was paid by the assessee for April 2014 to June 2015, on a....
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....dmitted tax liability therein. Admittedly, in the facts of the present case, the appellant has neither included the amount of freight in the assessable value at the time of clearance nor has amended their returns later on, nor issued any supplementary invoice on the buyer for revising the transaction value. Thus, there is no case made out of the deposit of the said amount by way of self assessment and hence, the contention of Revenue has no legs to stand. Further, Revenue has produced copy of return for the subsequent period where the appellant has reflected the said amount deposited, Rs.4,22,85,418/- in the column of 'arrear tax deposited'. Thus, the reflection of amount deposited later on does not become admitted tax or self assessed tax ipso facto. Self assessed tax or admitted tax is the tax as reflected in the periodical return under the provisions of the Act read with Rules thereunder. Accordingly, learned Counsel points out that the contentions of the Revenue are misconceived and vague and accordingly prays that the appeal may be allowed with consequential benefits. 12. Upon hearing the parties on this issue, we find that the Revenue has misconceived the facts, as admitte....