2012 (9) TMI 30 - AT - Central Excise

Refund claim of duty paid on HV/LV coils used captively for repairing transformer - Notification No.56/02-CE - denial - Revenue contended that fabrication of HV/LV coils do not bring about marketable goods as such, hence HV/LV coils captively consumed cannot be termed as excisable goods - Held that - Decision of Tribunal in the matter of PSEB vs. C.C.E., Chandigarh (1994 (12) TMI 181 - CEGAT, NEW DELHI) has been confirmed by Supreme Court wherein it has been held that fabrication of HV/LV coils does not bring about marketable goods, as such, those coils are not subject to levy of excise duty. That being the case when excise duty was not leviable on the goods, the respondent cannot take the benefit of Notification No.56/02-CE on the plea that he has cleared non-excisable goods on payment of excise duty. Otherwise also we cannot ignore the fact that excise duty paid by the assessee gets passed on to the consumer and the assessee does not suffer financial loss as he gets excise duty back from the buyer - Decided against assessee

Summary

Issues:
Challenge to refund of excise duty on HV/LV coils used for repairing transformers.

Analysis:
The primary issue in this case revolved around the refund of excise duty paid by the respondents on HV/LV coils used for repairing transformers. The Department contended that since the fabrication of coils did not result in marketable goods, they should not be considered excisable goods. The Department relied on a previous Tribunal judgment and a Supreme Court decision to support their argument. On the other hand, the respondents argued that the coils were rightly subjected to excise duty as they were used in the manufacturing process of transformers. They highlighted that they initially believed they were not liable to pay excise duty but were coerced by the Department to do so. The respondents claimed that they had passed on the excise duty to the consumer, thus not suffering any financial loss.

The Tribunal examined the contentions of both parties and reviewed relevant judgments. They noted that a previous Tribunal judgment had concluded that HV/LV coils were not subject to excise duty as they did not result in marketable goods. The Tribunal found that this decision had been upheld by the Supreme Court. Regarding the argument made by the Department based on a different Tribunal judgment, the Tribunal observed that it did not provide a clear distinction from the earlier decision that had been affirmed by the Supreme Court. Therefore, the Tribunal held that the issue of whether HV/LV coils were subject to excise duty was settled by the previous judgment, and the coils in question were not excisable goods.

Furthermore, the Tribunal addressed the question of whether the respondents were entitled to a refund under a specific notification. They concluded that since excise duty was not leviable on the goods in question, the respondents could not benefit from the notification providing for a refund of excise duty. The Tribunal emphasized that the excise duty paid by the respondents had been passed on to the consumer, and the respondents had not suffered any financial loss as a result. Therefore, the Tribunal rejected the plea of coercion by the Department and found no merit in the respondents' claim for a refund.

In conclusion, the Tribunal ruled in favor of the Department, setting aside the orders of the Commissioner (Appeals) that had allowed the refund to the respondents. The appeals filed by the Department were accepted, and the impugned orders were deemed unsustainable. The Tribunal disposed of the appeals and stay applications accordingly.