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2005 (10) TMI 317 - AT - Central Excise
Issues:
1. Appeal filed by the Commissioner against the order passed by the Commr. of Central Excise. 2. Refund claim by M/s. Raj Lubricants for duty paid on used Transformer Oil. 3. Interpretation of Section 11B of the Central Excise Act regarding duty refund eligibility. Issue 1: Appeal filed by the Commissioner The Commissioner filed two appeals against the orders by the Commr. of Central Excise. The appeals were in response to the refund claim filed by M/s. Raj Lubricants, who sold used Transformer Oil purchased from M/s. NALCO. The duty on the oil was paid by NALCO and recovered from Raj Lubricants. NALCO had taken Modvat credit and paid the duty after availing the credit. The Lower Authority rejected the refund claim, leading to an appeal with the Commissioner (Appeals), who set aside the Lower Authority's decision. Issue 2: Refund claim by M/s. Raj Lubricants M/s. Raj Lubricants claimed a refund of duty paid by NALCO on the grounds that they had paid the duty to NALCO and, therefore, were entitled to a refund. The Commissioner argued that as NALCO had already taken the Cenvat credit and paid the duty, no refund was admissible to Raj Lubricants. The Commissioner relied on the decision in Union of India v. Solar Pesticide Pvt. Ltd. to support this contention. Raj Lubricants, however, asserted that since they bore the duty incidence, they were entitled to the refund, questioning the locus standi when duty was paid by NALCO after taking Modvat credit. Issue 3: Interpretation of Section 11B of the Central Excise Act The Tribunal found that Raj Lubricants, after purifying the used Transformer Oil, did not pay any duty when selling it to customers. The Tribunal held that if NALCO had paid the duty incorrectly, it was a matter between NALCO and Raj Lubricants, and Raj Lubricants were not entitled to a refund when the manufacturer had paid the duty after taking the Modvat credit. Consequently, the appeals and cross-objections were disposed of, modifying the orders of the Commissioner (Appeals) accordingly.
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