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2013 (10) TMI 192 - AT - Central ExciseFinalization of provisional assessment - extended benefit of Concessional Rate of Duty Waiver of Pre-deposit - Held that - Assessee had paid the duty amount for which Grasim Industries has claimed refund - M/s Grasim Industries did not pay the disputed duty amount to the appellant and the amount was figuring as a receivable in the books of accounts of BHEL for a few years but the appellant has finally written it off - They have not got the amount from Grasim Industries because Grasim Industries were contesting that they were eligible for concessional rate of duty on ESP - there is no ground for demanding that amount again from the applicant by excluding the amount from the duty paid by the applicant. If there is any refund granted or to be granted to Grasim Industries, prima facie, it can be only on account of the fact that there is a concessional rate of duty prescribed for ESP and that BHEL has paid duty in excess of such concessional rate of duty - The merit of that refund claim is not before the Tribunal in this proceeding - However, prima facie, we do not see any reason to exclude the amount refunded to Grasim Industries from duty payments made by BHEL - waiver of predeposit of dues granted arising from the order for admission of the appeal and stay its collection during the pendency of the appeal - Stay granted.
Issues:
1. Determination of excise duty payable on Electro Static Precipitators (ESP) supplied by BHEL. 2. Validity of excluding ESP from finalization of provisional assessments. 3. Refund claimed by Grasim Industries for duty paid on ESP. 4. Disputed duty amount and refund to Grasim Industries. 5. Exclusion of refunded amount from duty payments made by BHEL. Analysis: Issue 1: Determination of excise duty on ESP The case involved the supply of ESP by BHEL to Grasim Industries Ltd. at a lower duty rate. The appellant contested the assessing officer's exclusion of ESP value and weight from the finalization of provisional assessments. The Tribunal held that the duty payable on ESP should be determined considering the contract as a whole, without excluding ESP from the assessment. The Tribunal emphasized that any refund of duty does not affect the finalization of provisional assessments. Issue 2: Validity of excluding ESP from assessments The Commissioner (Appeals) upheld the duty liability but deducted the refunded amount to Grasim Industries from the total duty paid by BHEL, resulting in a short payment. The Tribunal reiterated that excluding ESP from the assessment was not valid, as the refund granted to Grasim Industries did not impact the duty payable by BHEL. The Tribunal emphasized that the procedure laid down by the Commissioner encompassed assessment of goods supplied under the same contract, leaving no room for dispute on such aspects. Issue 3: Refund claimed by Grasim Industries Grasim Industries had claimed a refund for the excess duty paid on ESP, which was granted after rounds of litigation. The Tribunal noted that the merit of the refund claim was not under consideration in the current proceedings. It was highlighted that any refund granted was due to the concessional rate of duty for ESP, and the Tribunal saw no reason to exclude the refunded amount from BHEL's duty payments. Issue 4: Disputed duty amount and refund to Grasim Industries The appellant argued that they had paid the duty amount for which Grasim Industries claimed a refund. Despite Grasim Industries contesting the concessional duty rate on ESP, the appellant had written off the disputed amount. The Tribunal considered the arguments but found no grounds to demand the amount again from the appellant, especially since the refund to Grasim Industries was based on the concessional duty rate for ESP. Issue 5: Exclusion of refunded amount from duty payments The Revenue contended that the refunded amount to Grasim Industries should be excluded from BHEL's duty payments. However, the Tribunal disagreed, stating that the refund was due to the excess duty paid by BHEL and should not impact the duty payments made. The Tribunal granted a waiver of predeposit for the appeal and stayed the collection of dues during the appeal's pendency. This detailed analysis highlights the key legal issues, arguments presented by both sides, and the Tribunal's findings and decisions regarding the determination of excise duty, exclusion of ESP from assessments, refund claims, disputed duty amounts, and the treatment of refunded amounts in duty payments.
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