2017 (4) TMI 789 - AT - Central Excise

N/N. 108/95-CE dated 28.08.1995 - refund - duty paid diesel - construction contract - who is entitled to the exemption, manufacturer, contractor or buyer of the goods? - Held that - Revenue have failed to read the scheme of the Central Excise Act as a whole and accordingly have reached to erroneous conclusion. The learned Commissioner (Appeals) have rightly held that u/s 11 AB read with explanation clause (e) read with N/N. 108/95-CE read with N/N. 17/2004-CE, the respondent-assessee is rightly eligible for refund of duty paid in the facts and circumstances. Accordingly, there is no merit in the appeal of Revenue - appeal dismissed - decided against Revenue.

Issues:
1. Entitlement to refund under Notification No.108/95-CE for duty paid diesel supplied for construction under a World Bank Project.
2. Rejection of refund claims by the adjudicating authority.
3. Grounds urged before the Commissioner (Appeals) regarding the rejection of refund.
4. Decision of the Commissioner (Appeals) to allow the appeal and considerations for the same.
5. Argument by Revenue regarding entitlement to exemption under Notification No.108/95-CE for the buyer of duty paid goods.
6. Final judgment dismissing the appeal of Revenue and allowing the cross objection by the respondent-assessee.

Analysis:

1. The primary issue in this case revolved around whether the respondent-assessee, who supplied duty paid diesel for a construction project under a World Bank initiative, was entitled to a refund under Notification No.108/95-CE. The appellant had procured diesel for the project, which was initially meant to be duty-free but had to be purchased with duty due to a change in regulations. The appellant filed refund claims for the duty paid on the diesel purchased.

2. The adjudicating authority rejected the refund claims, questioning the timing of procurement after a specific notification and the lack of evidence showing non-collection of duty element from the principal. Separate show-cause notices were issued for the refund claims, and both were adjudicated together. The refund claims were ultimately rejected, leading the appellant to appeal before the Commissioner (Appeals).

3. Before the Commissioner (Appeals), the appellant argued against the rejection, emphasizing that they were the ultimate consumer of the goods, had not passed on the duty incidence, and had followed the necessary procedures for exemption. The appellant presented supporting documents, including affidavits, declarations, and exemption certificates, to demonstrate compliance and lack of unjust enrichment.

4. The Commissioner (Appeals, upon review, found merit in the appellant's contentions. The Commissioner acknowledged the constraints imposed by the change in regulations that forced duty-paid procurement and noted the appellant's efforts to prove bona fides through documentation. The appeal was allowed, highlighting that trivial procedural irregularities should not be grounds for rejecting a refund claim.

5. The Revenue, dissatisfied with the Commissioner's decision, argued that only manufacturers supplying goods to World Bank projects were entitled to exemption under Notification No.108/95-CE, not buyers or contractors. The Revenue contended that the appellant, as a buyer of duty-paid goods, was not eligible for the refund and that the exemption was misapplied by the Commissioner (Appeals).

6. In the final judgment, the Tribunal dismissed the appeal of the Revenue. The Tribunal disagreed with the Revenue's interpretation, stating that the Central Excise Act, when read holistically, supported the eligibility of the respondent-assessee for the refund under the relevant notifications. The Tribunal upheld the decision of the Commissioner (Appeals) and allowed the cross objection by the respondent-assessee for statistical purposes, entitling them to consequential benefits.

This detailed analysis outlines the progression of the case, including the arguments presented, the decisions made at each stage, and the final judgment by the Tribunal.

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