2009 (5) TMI 856 - AT - Central Excise

Summary

Issues involved: Refund claim under Section 11B of Central Excise Act, 1944 due to short receipt of goods by purchaser.

Summary:
The appeals were filed against two orders dated 22-5-2008 and 29-2-2008. The appellant, a 1st stage dealer, claimed refund of excess Central Excise Duty paid due to variance in weighbridge at purchaser's end. The Assistant Commissioner rejected the refund claim citing contravention of Section 11B of Central Excise Act, 1944. In Appeal No. E/451/08, the adjudicating authority upheld the rejection, leading to the appeal by the assessee. On the other hand, in Appeal No. E/618/08, the learned Commissioner (Appeals) set aside the order, prompting the revenue to appeal.

In the appeal, the assessee argued that they paid duty based on weighbridge quantity, but the purchaser's weighbridge showed different weights. The appellant received payment based on purchaser's quantity and corresponding duty. The appellant claimed excess duty refund, supported by a certificate from the purchaser indicating cenvat credit adjustment. The appellant relied on a Tribunal decision and highlighted the undisputed shortage in goods received by the purchaser.

The Revenue contended that the weight at purchaser's end is irrelevant for duty discharge and argued against the refund. They claimed that the Commissioner's differing views in the orders were inconsistent. They emphasized that the duty paid by the appellant was not in excess as per their factory weighbridge, hence the refund claim rejection was justified.

After considering the submissions and records, the Tribunal found that the appellant's claim for excess duty refund due to short receipt by the purchaser was valid. The slight shortage in goods received, not exceeding 1% over 7 months, did not render the refund claim invalid under Section 11B. The Tribunal noted that the appellant had not passed on the excess duty to the customer and that the shortage reported by the purchaser was genuine. Therefore, the Tribunal allowed the assessee's appeal and rejected the Revenue's appeal, disposing of both cases accordingly.