TaxTMI 
TaxTMI 
2025 (5) TMI 1017
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....als filed by the department against the order granting refund to the petitioners. 4. For the sake of convenience, Special Civil Application No.11793 of 2023 is treated as a lead matter. 5. Brief facts of the case are that the petitioner no. 1 is a company incorporated and registered under the relevant provisions of the Companies Act, 1956 and manufactures various excisable products such as Electric Energy Saving Lamp, Vitrified Tiles, Quartz Clock, etc. at the unit in Kutch. 6. Pursuant to the massive earthquake in the District of Kutch in the year 2001, the Central Government had issued Notification No. 39/2001-CE dated 31.7.2001 granting exemption to excisable goods (other than those specified in the Annexure to this notification) cleared from units in Kutch. The said Notification was amended from time to time thereafter. Since the petitioner's unit is in the District of Kutch, it has been availing the benefits of Notification No. 39/2001- CE dated 31.7.2001 and of amended notification and the petitioner had been filing refund claims from time to time. 7. For the period from June 2008 to November 2008, the petitioner had filed refund claims totaling of Rs. 3,67,09....
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.... 11. Considering the rejection of the Department's Stay Application by CESTAT, the respondent no. 4 herein inter alia passed consequential Refund Orders, and the following amounts were refunded to the petitioner: "i. Refund Order No, 167/2009/10 dated 30.11.2009 for an amount of Rs. 38,77,819/- for the period of June 2008. ii. Refund Order No. 168/2009/10 dated 30.11.2009 for an amount of Rs. 35,20,255/- for the period of July 2008. iii. Refund Order No. 169/2009/10 dated 30.11.2009 for an amount of Rs. 72,17,806/- for the period of August 2008. iv. Refund Order No. 170/2009/10 dated 30.11.2009 for an amount of Rs. 75,35,235/- for the period of September 2008. v. Refund Order No. 171/2009/10 dated 30.11.2009 for an amount of Rs. 78,11,031/- for the period of October 2008. vi. Refund Order No. 172/2009/10 dated 30.11.2009 for an amount of Rs. 67,31,011/- for the period of November 2008. vii. Refund Order No. 180/2009/10 dated 22.12.2009 for an amount of Rs. 1,94,94,450/- (Annual Difference 2008-09). " 12. In March 2010, the Department filed an appeal, bearing Appeal No. V2/3/EA2/RAJ/2010, before the respondent ....
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....9 before CESTAT was withdrawn, the order dated 25.3.2009 passed by the Commissioner (Appeals) has become final and hence the Department's Appeal No. V2/3/EA2/RAJ/2010 against the aforesaid consequential Refund Order Nos. 167 to 172/2009/10 dated 30.11.2009 were required to be dismissed. The petitioner also submitted that if any further submissions, clarification or documents are required, the appeal may be posted on any other date to enable the petitioner to make effective hearing in the matter 18. However, the respondent no. 2 proceeded to allow the Department's Appeal No. V2/3/EA2/RAJ/2010 vide the impugned Order in Appeal No. KCH-EXCUS-000-APP-037- 2023 dated 18/19.5.2023 (received by the petitioner on 5.6.2023). 19. Being aggrieved, the petitioner has preferred the present petition. 20. The issue raised in all these petitions is same. For ready reference, a chart is made to highlight individual facts of each case : Sr. No. SCA No. Period covered Details of consequential refund order following order of Commissioner(Appeals) dated 25.03.2009 1 11797/2023 Annual claim for differential duty paid in respect to 2008- 2009 i) Refund order da....
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....issioner(Appeals) by order dated 25.03.2009 namely, (i) regarding giving benefit of amount which is utilised from PLA account instead of debiting it into Cenvat Credit Account (ii) issue on percentage of value addition as per the rate specified in Notification No.33/2008 dated 10.06.2008 as all the final product manufactured and cleared by the petitioners under area based exemption notification falls under Entry at SL. No.16 of the Table of the said Notification as all other goods other than goods covered in SL. No. 1 to 15 of the notification and the percentage of refund specified in SL No.16 is 36% of the total duty paid on the said goods. It was therefore, submitted that since all the goods are covered under single category under SL No.16 and 36% is prescribed rate, the petitioners have claimed refund on the total duty paid in PLA account and total duty paid utilizing Cenvat Credit together for arriving at percentage and the adjudicating authority was not justified in computing duty separately for each product and thereafter arrive at percentage of refund. It was submitted that the Commissioner (Appeals) under the order dated 25.03.2009 accepted that the method adopted by the pe....
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.... or (iii) where the order or proceedings are wholly without jurisdiction or (iv) the vires of the Act is challenged, then only writ petition is required to be entertained otherwise the petitioner is required to be relegated to avail alternative remedy. 27. It was therefore, submitted that none of the criteria prescribed by the Hon'ble Apex Court for entertaining the writ are present in the facts of the present case and the petitioner therefore, may be relegated to alternative efficacious remedy as per the provisions of section 35B of the Act. 28. It was further submitted that respondent no.2 has taken into consideration the conditions prescribed in the Notification No.39/2001-CE as amended by Notification No.33/2008-CE dated 10.06.2008 and thereafter, held that correct value addition can be determined if the duty payment is computed separately for each product. It was therefore, submitted that if the refund is computed on the basis of the duty paid on all the products, then the value addition on individual product is not considered whereas refund is regulated on the basis of the value addition, and hence the respondent no.2 has rightly held that the value of each respective p....
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....in S. Nos. 1 to 15 36 Any goods Provided that where the duty payable on value addition exceeds the duty paid by the manufacturer on the said excisable goods, other than the amount paid by utilization of CENVAT credit during the month, the duty payable on value addition, shall be deemed to be equal to the duty so paid other than by CENVAT credit. 2B The exemption contained in this notification shall be given effect to in the following manner, namely: - (a) the manufacturer shall submit a statement of the total duty paid and that paid by utilization of CENVAT credit, on each category of goods specified in the said Table and cleared under this notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid; (b) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification as may be deemed necessary, shall refund the duty payable on value addition, computed in the manner as specified in paragraph 2 to the manufacturer by the 15th of the month following t....
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.... No. 16 is 36% of total duty paid on the said goods. Since all the goods are covered under single category under Sl.No.16 and 36% is the prescribed rate, there is a justification in the appellants contention that their total duty paid in PLA and total duty paid in CENVAT is to be taken together for arriving percentage. Whereas, the Lower Authority has computed the duty separately for each product and arrived at the percentage of refund. Therefore I find that the correct method for arriving at the total duty paid on the said goods is to take all the items falling under Sl.No. 16 together and arrive at the total duty payment taking the duty payment from PLA and CENVAT account of the items together. Thereafter, from the total duty paid together, the percentage should be calculated for. granting rebate. In the present case the total duty paid in PLA on the eligible goods is Rs. 1,75,52,776/- and total CENVAT utilized Rs. 1,10,66, 038/- and as per the Notification No. 33/2008 the 36% is the prescribed rate eligible for refund which comes to Rs.1,03,02,773/- which is less than the amount paid in PLA. Thus, the appellants are eligible for refund of R$.1,03,02,773) - Further as discussed i....
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.... is whether the impugned orders sanctioning refund at the prescribed rate of 36% for duty paid on all goods covered under Sl No 16 of Notif. 33/2008-CE by taking total duty paid from PLA and CENVAT on all goods covered under Sl No 16, is correct, proper and legal or not. 6. For ease of reference, I would like to refer to the provision contained in Notif. 39/2001-CE. The Notification provides that: In cases where all the goods produced by a manufacturer are eligible for exemption under this notification, the exemption contained in this notification shall be available subject to the condition that the manufacturer first utilizes whole of CENVAT credit available to him on the last day of the month under consideration for payment of duty on goods cleared during such month and pays only the balance amount in cash. 2. The exemption contained in this notification shall be given effect in the following manner, namely (a) (b) Provided that in cases, where the exemption contained is not applicable to some of the goods produced by a manufacturer, such refund shall not exceed the amount of duty paid less the amount of CENVAT availed of, in ....
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....the said appellate order by my predecessor, nor being an order from a higher authority, is not a binding precedent for successor appellate authority of equal rank for deciding subsequent appeals involving same issue on their merits in accordance with the statutory provisions. Hence, I find myself at liberty to differ with my learned predecessor. Hence, I find that the refund orders sanctioning refund based on said appellate order, are not legal and proper and need to be set aside." Above reasons given by respondent no.2 is required to be deprecated by all means in view of the fact that respondent no.2 could not have taken a different view than what was taken by his predecessor in order dated 25.03.2009. Respondent no.2 being Commissioner (Appeals) could not have differed with his coordinate rank Commissioner (Appeals) who was his predecessor by observing that the said appellate order of the predecessor not being an order from higher authority is not binding precedent for successor. Such an opinion of the Commissioner (Appeals) is contrary to the judicial discipline as any order passed by the same ranking officer is binding upon the successor when the said order of his predecesso....
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....ied is also incorrect. Section 35-E confers adequate powers on the department in this regard. Under Sub-section (1), where the Central Board of Direct Taxes come across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it can direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under Sub- section(2) the Collector of Central Excise, when he comes across any order passed by an authority subordinate to him, if not satisfied with this legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellat....
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....e, we set aside both orders and remand both the appeals back to the Tribunal and request its President to constitute a larger Bench of three Members to decide the issue whether the vehicles manufactured by the assessee falls under Entry 87.02.00 or 87.03.00 of the Act." 3) In case of Claris Lifesciences Ltd. v. Union of India reported in 2013 (298) ELT 45 (Guj), wherein this Court held as under: "7. Having heard learned Counsel for the parties, we are of the opinion that the approach adopted by the Adjudicating Authority was wholly impermissible in law. At the outset, we may record that we are conscious that such order is appealable in terms of statutory appeals provided under Central Excise Act, 1944. However, we find that the Adjudicating Authority committed serious error in disregarding binding precedent and that there are absolutely no disputed facts. We would, therefore, not insist that the petitioners once again follow the same gamut of taking the appeal route. To revert back to the issue at hand, we may recall that the question of computation of education cess and secondary and higher education cess was decided finally by the Tribunal in favour of the petit....
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.... Rs.2,42,110/- sanctioned and erroneously refunded by appropriating against the outstanding Government dues should not be rejected and amount so appropriated should not be recovered under section 28 read with section 27 of the Customs Act, 1962 in absence of proof regarding burden of duty being not passed on. The very frame of the show-cause notice indicates that the adjudicating authority was reviewing the earlier order inasmuch the respondent had been called upon to show cause as to why the refund granted by the earlier order should not be rejected. 8. Sub-section (2) section 129D empowers the Commissioner of Customs to call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under the Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and to direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner in his order. Sub-section (4) thereof provides for preferring an appeal against the order of the concerned authority. In the cir....
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....er the principle was attracted to the facts of the present case. When it failed to do so in its order dated 9 May 2011, the Appellant justifiably drew the attention of the Tribunal to this aspect and sought a modification of the order. In addition, the Appellant relied upon the decision of the Supreme Court in Chandana Impex (supra) and to another decision of a coordinate Bench of the Tribunal itself. The CESTAT as a judicial body, must realize the importance of the doctrine of precedent as in our legal system. Deference to judgments of the Supreme Court is a matter of constitutional principle. Equally, unless coordinate Benches of the Tribunal have due deference and regard for decisions rendered by the Tribunal, the elements of certainty and consistency in the judicial process which lie at the heart of judicial functioning would be seriously disrupted. We are constrained to make this observation because it is necessary for Court and Tribunals to realize the importance of judicial consistency and certainty in decision making. Judges individually in the discharge of their functions are independent adjudicators. But both individually and as constituents of institutions of wh....
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....ctober, 2015 including the petitioner's distribution income in the turnover and taxed the same according to the prescribed rate. Against such order of assessment, the petitioner preferred appeal before respondent No. 2-appellate authority. Before the appellate authority, the petitioner pointed out that under similar circumstances the Deputy Commissioner of Sales Tax (Appeals) under his order dated 27th February, 2007 had accepted the petitioner's contention that the transaction in question de not invite sales tax. The relevant portion of the order of the Deputy Commissioner reads as under : "I have gone through the assessment record alongwith grounds of appeal as discussed above and document submitted by the appellant including agreement made between MTV India Ltd. and Various Cable Operators. It is observed that The STO has levied Tax on Rs. 69,38,502/- treating it as taxable TO of sale under BST Act @ 4% without mentioning the schedule entry under which tax has been levied. This amount is infact the Distribution income of the appellant from India. This amount infact represent the income received by the appellant towards the subscription charges levied on....
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....am reported in 2018 (8) GSTL 108 (Mad.), wherein Hon'ble Madras High Court held as under: "4. The petitioner was engaged in the business of textile printing and processing of fabrics. The petitioner paid a duty of Rs. 48,767/- on 30-9-1996. Thereafter, the Deputy Commissioner on enquiry held that the duty levied was incorrect and passed an order dated 22-10-1997. Aggrieved by such order, the petitioner preferred appeal to the Commissioner of Central Excise and Customs (Appeals), who by order dated 27-8-1998, reduced the duty to Rs. 3,446/-. This order became final. Therefore, the petitioner filed an application for refund of the balance amount of Rs. 45,332/- on 23-9-1998. This refund accrued to the petitioner only after the appeal was allowed by the second respondent by order dated 27-8-1998, reducing the duty. Thus, the application was well within the period of two months from the date on which the order passed by the appellate authority. The first respondent considered the application for refund and passed an order dated 21-1-1999, ordering refund, but directing payment of amount to the Consumer Welfare Fund. Once again, the petitioner filed appeal before the Commission....