2023 (8) TMI 1233 - AT - Central Excise

Rejection of refund claim - appellant has not opted for provisional assessment - document required to justify the payment of excess excise duty have not been produced - Chartered Accountant Certificate produced by the appellant cannot be accepted. Refund-claim rejected on the ground that the appellant has not opted for provisional assessment - HELD THAT - It is seen that the appellant had made an application to the Department dated 06.05.2011 seeking provisional assessment - The issue is no more res integra. In the case of SSAVITA OIL TECHNOLOGIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VAPI 2023 (7) TMI 1061 - CESTAT AHMEDABAD , the Tribunal held that the refund claim cannot be rejected merely because an assessee had not opted for provisional assessment when there is excess payment of duty - the rejection of refund-claim alleging that the appellant has not opted for provisional assessment is not justified. Rejection on the ground that appellant has not produced the comparative documents to justify the payment of excess excise duty - HELD THAT - The Department has called for the details of price/sale invoices of the sales made by the unrelated dealer to the ultimate customers. In fact, the price at which the dealers have sold the cars to the end users is of no consequence for considering whether higher amount of duty has been paid. The excess payment of duty has happened while making the clearances by the appellant to the related parties / dealers (NMIPL/RIPL). So to check whether there is excess payment of duty sale price of the related parties to the unrelated dealer has to be looked into and not the sale price of the unrelated dealer to the end customer. It is seen from the records that the Department has called for invoice issued by dealers to end customers to verify whether there is excess payment of duty - the allegation in the Show Cause Notice that the appellant has not furnished documents with regard to the sale price to end customers so as to verify whether the excess excise duty is paid is totally erroneous. Principles of unjust enrichment - HELD THAT - The original authority as well as the first appellate authority has confined their discussions to the draft circular alone without recording any finding as to the issue of unjust enrichment. The Commissioner (Appeals) has referred to the decision in the case of M/S. ADISON AND CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE 2017 (5) TMI 50 - SC ORDER . However, there is no finding recorded as to whether the incidence of duty has been passed on by the appellant to the end customer. The authorities below have not analysed the issue in the correct legal prospective for which the matter requires to be remanded to the adjudicating authority. In the result, the impugned order is set-aside. The matter is remanded to the adjudicating authority who shall consider the observations of this order and process the refund-claim denovo - Appeal allowed by way of remand.

Summary

Issues Involved:
1. Provisional assessment requirement for refund claims.
2. Adequacy of documents provided to justify excess excise duty payment.
3. Issue of unjust enrichment.

Summary:

Provisional Assessment Requirement for Refund Claims:
The appellant, engaged in manufacturing motor cars and parts, filed a refund claim for excess excise duty paid. The Department rejected the claim on the grounds that the appellant had not opted for provisional assessment. The appellant argued that they had requested provisional assessment via a letter dated 06.05.2011, but received no response from the Department. The Tribunal held that the refund claim cannot be rejected merely because the assessment was not provisional, referencing decisions in similar cases (Savita Oil Technologies Limited, Balmer Lawrie & Co. Ltd. Vs. Commissioner of Central Excise, Kolkata - VI, and others). Thus, the rejection of the refund claim on this ground was deemed unjustified.

Adequacy of Documents Provided to Justify Excess Excise Duty Payment:
The Department also rejected the refund claim due to the appellant's failure to provide comparative documents, specifically invoices detailing sales to end customers. The appellant contended that under Rule 10 of the Central Excise Valuation Rules, 2000, the relevant transaction value is the price at which the related party sells to an unrelated buyer, not the end customer. The Tribunal agreed, noting that the Department erroneously demanded documents irrelevant to the determination of excess duty payment. The appellant had provided necessary documents showing the higher duty paid on clearances to related parties (NMIPL/RIPL) and subsequent sales to dealers. Therefore, the Tribunal found the Department's requirement for end customer sales details to be erroneous.

Issue of Unjust Enrichment:
The third ground for rejection was the issue of unjust enrichment. The appellant submitted a Chartered Accountant (CA) Certificate indicating that the duty incidence had not been passed on to another party, and the amount was reflected as 'receivables' in their balance sheet. The adjudicating authority dismissed the CA Certificate without providing a substantive reason, focusing instead on the non-binding nature of a draft board circular cited by the appellant. The Tribunal noted the lack of a proper analysis on the issue of unjust enrichment and found the authorities' approach to be inadequate.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for a fresh consideration, directing them to process the refund claim de novo, taking into account the observations made in the Tribunal's order. The appeals were allowed by remand.

Order Pronounced:
(Order pronounced in open court on 25.08.2023)