2014 (3) TMI 823 - AT - Central Excise

Recovery of refund already granted - overvaluation of the goods - Area based Exemption in Jammu and Kashmir - Assessee paid in excess in the first place and taken credit of the same and subsequently utilised - Benefit of Notification No. 56/2002-C.E., dated 14-11-2002 - Held that - burden to prove the allegation of overvaluation is clearly on the department. Mere non-receipt of money from the buyer partly or fully cannot be the basis to conclude overvaluation. We have not been shown any other evidence in support of their overvaluation. The records do not indicate that the merchant exporter has been paid any rebate - credit taken by the applicant relates to the duty allegedly excess paid by the applicant in PLA - prima facie we do not find any merit in the order for recovery of allegedly excess paid refund and imposition of penalty - Decided in favour of assessee.

Summary

Issues: Alleged overvaluation leading to recovery of refund, imposition of penalty, and waiver of pre-deposit.

Alleged Overvaluation and Recovery of Refund:
The case involved an applicant availing benefits under Notification No. 56/2002-C.E., who cleared goods to a merchant exporter for export to UAE. The department alleged overvaluation of goods based on the discrepancy between the amount paid by the applicant and the sum received from the exporter. The Commissioner ordered recovery of the refund along with interest and imposed a penalty. The applicant contended that they received a higher amount from the exporter, challenging the basis for overvaluation. The Tribunal noted that the burden of proving overvaluation rested on the department and emphasized that non-receipt of full payment from the buyer does not automatically indicate overvaluation. Lack of additional evidence supporting overvaluation and absence of proof of rebate payment to the exporter led the Tribunal to rule in favor of the applicant.

Imposition of Penalty:
The department argued for pre-deposit, asserting overvaluation to claim excess refund. However, the Tribunal found insufficient evidence to support the allegation of overvaluation. The Tribunal highlighted that the credit taken by the applicant was related to the duty allegedly overpaid through PLA. Consequently, the Tribunal did not find merit in the order for recovery of the refund and penalty imposition. The Tribunal emphasized that non-receipt of full payment from the buyer does not establish overvaluation conclusively, and without additional evidence, the allegation could not be sustained.

Waiver of Pre-Deposit:
Considering the facts and circumstances, the Tribunal concluded that there was no merit in the recovery order and penalty imposition. Consequently, the Tribunal waived the pre-deposit of dues as per the impugned order and stayed the recovery pending the appeal's disposal. The decision to waive pre-deposit was based on the lack of sufficient evidence supporting the overvaluation claim and the absence of conclusive proof indicating excess refund availed by the applicant.