2017 (7) TMI 127 - AT - Central Excise

Refund of excess paid duty - appellant cleared their final product through depot, accordingly the prices were not known at the time of clearance from the factory - Held that - The Ld. Commissioner (Appeals) despite detailed verification was done by the original authority and also which is based on the report from the Range Superintendent, given finding that the sale invoice and relevant records were not verified which is absolutely incorrect on the face of the finding in the adjudication order - it is settled that in case of sale of the goods through depot after stock transfer when the value from the depot is charged than the value at which the excess duty was paid at the time of clearance from the factory there is not question of unjust enrichment. The Commissioner (Appeals) has not explicitly remanded the matter to the original authority for re-consideration even if it is presumed that the request of the Revenue for remand of the matter was allowed by the Commissioner (Appeals) it is open for the assessee to challenge the finding of the impugned order, therefore the appeal is very much maintainable before this Tribunal.

Issues:
1. Provisional assessment for the period January 2009 to December 2009.
2. Short payment and excess payment of duty.
3. Refund sanctioned by the assessing authority.
4. Appeal by Revenue before the Commissioner (Appeals).
5. Commissioner (Appeals) setting aside the original order.
6. Verification of sale invoices and relevant records.
7. Unjust enrichment and passing on the duty to customers.
8. Remand of the matter to the original authority.
9. Maintainability of the appeal before the Tribunal.

Detailed Analysis:
1. The appellant opted for provisional assessment for the period January 2009 to December 2009 as the final product was cleared through a depot where prices were not known at the time of clearance from the factory. The adjudicating authority passed the final assessment, addressing short payment and excess payment of duty.

2. The assessing officer sanctioned a refund of excess paid duty amounting to ?3,84,361 by way of Cenvat Credit in the appellant's account. However, the Revenue filed an appeal before the Commissioner (Appeals) only for the portion of refund sanctioned by the adjudicating authority, leading to a dispute over the refund.

3. The Commissioner (Appeals) set aside the original order based on the grounds that the sale invoices issued from the depot and other relevant records were not verified by the assessing authority. This raised concerns about unjust enrichment and whether the duty was passed on to the customers, leading to a disagreement between the parties.

4. The appellant's counsel argued that the original authority had properly verified all relevant records and determined the short payment and excess payment of duty accurately. The Commissioner (Appeals) was criticized for not addressing the discrepancies in the documents submitted before the original authority and basing the decision on assumptions and presumptions.

5. The original authority's detailed examination of the records showed that there were instances of short and excess payment of duty due to varying values charged from the depot compared to the factory. The excess duty was paid because the value at which duty was paid at the factory was higher than the value charged to customers from the depot.

6. The Tribunal found that the Commissioner (Appeals) erred in setting aside the original order without proper verification of records, as the original authority had diligently examined the documents and reports from the Range Superintendent. The Tribunal disagreed with the finding of the Commissioner (Appeals) and allowed the appeal filed by the appellant, setting aside the impugned order.

7. The issue of remand to the original authority raised by the Revenue was dismissed by the Tribunal, stating that the appeal was maintainable before the Tribunal despite the remand by the Commissioner (Appeals). The Tribunal emphasized the importance of proper verification of records and adherence to legal provisions in determining duty payments and refunds.

8. The judgment highlighted the significance of ensuring that duty payments are not passed on to customers unjustly and that proper assessment procedures are followed to avoid discrepancies. The Tribunal's decision focused on upholding the original authority's findings based on thorough verification and rejecting the Commissioner (Appeals)'s decision based on assumptions.

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