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TMI Blog2018 (1) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... be denied to the respondent in respect of the transaction in dispute. There is no authority to tax an assessee twice for the same transaction. Appeal dismissed - decided against Revenue. - E/86192 & 86193/2015-MUM, E/CO/91150 & 91149/-MUM - A/91640-91641/2017 - Dated:- 23-8-2017 - Shri Anil Choudhary, Member (Judicial) Shri S. V. Nair, Assistant Commissioner (AR): For Revenue Shri Gautam Dutta, Advocate: For Assessee ORDER Per: Anil Choudhary These appeals are arising from common Order-in-Appeal No.NGP/EXCUS/000/APPL/303 304/14-15 dated 09.03.2015 have been filed by Revenue challenging the findings of the Commissioner (Appeals) wherein he has been pleased to hold that the appellant-assessee have paid double tax on clearance of the goods (which are in the nature of capital goods), as the tax payable was already paid by the buyer of the goods under the scheme of Notification No.33/2012-CE, and accordingly recording a finding that the appellant have made substantial compliance of their obligation, allowed their claim of refund to the extent of double tax paid. 2. That Notification No.33/2012-CE dated 09/07/2012 issued under Section 5A(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were delivered to M/s Raghuvir on 10/01/2014. Such clearances were not effected under the said notification. The Assistant Commissioner further observed that as per the letter dated 19 th March, 2014, M/s Raghuvir had asked them to bill the capital goods under the notification but they had wrongly billed the party inclusive of duty and paid the duty on the same. This indicates that the appellant did not intend to clear the consignment of capital goods under the Notification and now they are contending that the capital goods were cleared under the notification. Further the rebate through script was only ₹ 26,77,366/- which was not sufficient to cover the total duty of ₹ 27,86,277/- involved on consignment of capital goods cleared to M/s Raghuvir. As such clearances of entire capital goods to M/s Raghuvir was not permissible through the debited scrip by the appellant under the notification. The Assistant Commissioner further held that since invoices issued under Rule 11 of Central Excise Rules, 2002 by the appellant to M/s Raghuvir for clearances of capital goods on payment of duty and not through SHIS under the notification, these clearances are termed as clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld claim refund subsequently when the SHI scrip was traced. 6.3 On the other hand, I find that the lower authority, has precisely rejected the refund claim on the one major ground that the subject goods which have been cleared to M/s Banshi on payment of duty under cover of invoices are not the same goods for which the SHI scrip has been debited by Customs Authority and thus, there are two different transactions in this case and hence refund is not sanctionable. 6.4 The one major reason for arriving at such a conclusion by the lower authority, is that the appellant did not produce the debited SHI scrip at the time of clearance of goods from the factory gate but, produced it later on and thus, at the time of actual clearance of goods from the factory, the appellant had no intention of clearing the goods under the said notification and the SHI scrip. The lower authority has also pointed out that as the appellant had not intended to clear the goods under the said notification at the time of actual clearance, therefore, the benefit of the said notification, which is subject to actual user condition, cannot be verified, as the customer is free to transfer the goods to any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. So, I find no reason to doubt the veracity of the claim made by the appellant that the said duty paid goods cleared by the appellant to M/s Banshi is the same goods for which the SHI scrip in question has been debited by the Customs officer in lieu of central excise duty and therefore, they have been taxed twice on the same transaction and hence are eligible for refund. 6.8 Undoubtedly, revenue does not have authority to tax an assessee twice for the same transaction which will be in total violation to his legal and constitutional rights. The appellant is eligible for the benefit of exemption vide notification No.33/2012-CE, dt. 09/07/2012 for clearances under duty paid SHIS license which condition has been complied in the instant case, by virtue of the SHI scrip in question being debited by Customs officer on 14/08/2013 equivalent to appropriate amount of central excise duty on the goods intended to be cleared under proforma invoice. There is no doubt that once the SHI scrip has been debited in lieu of payment of duty, then there is no need to pay duty again at the time of clearances. At the time of clearances of the subject goods, as the appellant was unable to produce th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has already taken the benefit of the notification in the form of exemption on such clearances which have been made from his factory gate. So, now that the benefit of the said notification has been given to the appellant in the form of refund, the proper officer, can proceed and verify the actual user condition of the goods cleared, without making this a condition for granting refund/ exemption under the said notification. Even otherwise, the relevance of verifying the actual user condition is only for the purpose of giving the benefit of various export promotional incentives to the procurer of such goods and therefore, are a subject matter of verification of the governmental authorities who are monitoring the execution of such schemes/ incentives and giving the benefit to the exporters after verification of the actual user condition of such goods procured. 6.13 Lastly, there is no bar for an assessee to make clearances of goods on payment of duty over and above debit value shown in the SHI scrip and hence, in the instant case also refund can be granted to the extent of the debit made in the SHI scrip and the remaining can be treated as normal clearances. 6. Being ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case is not clear. On their own volition the respondent cleared some goods on payment of appropriate duty without claiming the benefit of a conditional notification, wherein conditions have to be satisfied prior to clearance. Further reliance is placed on the ruling of the Apex Court in the case of CCE, New Delhi Vs. M/s Hari Chand Sri Gopal reported in 2010 260 ELT 3 (S.C.). 7. Heard the parties. 8. Having considered the rival contentions, I find that the learned Commissioner (Appeals) have recorded categorical finding of facts. The SHI scrip as held by M/s Banshi had been debited on 14/08/2013 by the concerned Customs Authority against proforma invoice dated 20/07/2013 issued by the respondent for the subject goods. The said debit had been made by the Customs Officer and a letter issued to the effect dated 14/08/2013. Further, the clearances from the respondent's end had commenced from 16/08/2013 onwards i.e. after the date of debit in the SHI scrip and letter issued by Customs Officer. The description of the goods actually cleared are the same as that mentioned in the proforma invoice duly attested by the Customs Officer, which fact is undisputed. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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