1997 (11) TMI 184 - AT - Central Excise

Summary

Issues:
1. Interpretation of assessable value for refund claim.
2. Calculation of refund amount.
3. Allegation of excess duty payment.
4. Bar on limitation for refund claim.
5. Application of duty rate in calculation.

Interpretation of Assessable Value for Refund Claim:
The appeal before the Appellate Tribunal CEGAT, New Delhi arose from a dispute regarding the assessable value for a refund claim. The Collector (Appeals) held that the respondents were eligible for a refund as they had paid excise duty in excess to which the refund claim related. The Assistant Collector's rejection of the refund claim was based on a different interpretation of assessable value. The Collector (Appeals) found that the respondents had not realized any extra amount as Central Excise duty from their customers, leading to the conclusion that the assessable value should not include the gross value of the goods mentioned in the gate passes. Consequently, the Collector (Appeals) directed the Assistant Collector to grant the refund claim of Rs. 7,304.12.

Calculation of Refund Amount:
In the appeal filed by the department, it was argued that the Collector (Appeals) had directed a higher refund amount of Rs. 7,304.12, whereas the revised claim by the respondents was Rs. 5,432.31. The department contended that the payment of duty had been made based on the gross value for goods cleared under specified gate passes, which was disputed upon verification of the gate passes and corresponding invoices. The department questioned the correctness of the excess duty payment claimed by the respondents.

Allegation of Excess Duty Payment:
During the hearing, the department highlighted that the Assistant Collector had not found evidence of the recovery of any excess amount by the respondents from their customers. The department argued that the Assistant Collector should have applied the concessional rate of duty of 5% instead of nil rate while calculating the duty amount. The Tribunal noted that unless there was evidence of the recovery of duty separately from customers, rejecting the contention that invoice price was cum duty was not justified.

Bar on Limitation for Refund Claim:
The Tribunal addressed a preliminary objection regarding the limitation on the refund claim related to duty paid on a specific date. The Tribunal overruled the objection, stating that the refund claim was filed on the next working day after a weekend, and therefore, was not barred by limitation.

Application of Duty Rate in Calculation:
The Tribunal found that the Assistant Collector's calculation of the assessable value was based on a flawed premise of applying a nil rate of duty, whereas the respondents had paid duty at 5%. The Collector (Appeals) had correctly determined that the refund claim was admissible as the respondents did not receive any extra amount as Central Excise duty from customers, and the total amount received was the cum duty value. The Tribunal upheld the order-in-appeal and dismissed the department's appeal based on these findings.