9911796707
TMI Blog2025 (2) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... c Notice No. 18/99 dated 14.05. 1999, a special procedure was set out for regulating the movement of SKO through this Pipeline. According to the procedure, at the time of import an Into Bond Bill of Entry was filed. The Into Bond Bill of Entry was closed at Panipat terminal after reconciliation with the out turn reports prepared by all terminals. In the present case, the outturn report was wrongly prepared by the Appellant, as the stocks removed during the disputed period were considered to be Excise bonded SKO and excise duty was paid on the same. Subsequently, the mistake was brought to the notice of the Appellant in December 1999, when the Quarterly reports were prepared. The Panipat terminal had in the interim period exhausted all the Into bond Bill of Entry by depositing duty as per the FIFO method. The only option available to pay Customs duty was to make payment for the open Bills of Entry. The appellant had to pay the custom duty and thereafter, the appellant filed a claim on 31.12.1999 for refund of the Excise duty incorrectly paid by considering the product as Excise Bonded SKO along with refund claim the Appellant also submitted documentary evidence to establish that bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o November 1999 which entitles the appellant to the refund of the excise duty. 5. Learned Counsel also submits that both authorities have failed to consider that the petroleum product cannot be stored or transferred like any other normal products and therefore, this special procedure was laid down specifically for petroleum products. He further submits that when the matter was remanded by the Tribunal to the lower authorities, the appellant produced the following documents which established that the excess duty has been paid: i. Copy of PLA for the months of July 1999 to December 1999 evidencing payment of excise duty for the clearance of effected from 15.07.1999 to 31.12.1999. ii Photocopies of TR6 Challan nos. 71 dt. 1.07.1999 to no. 198 dt. 13. 12. 1999 vide which the excise duty was originally deposited during July 1999 to December 1999 iii. List of invoices issued during July 1999 to December 1999 showing clearance of the above consignment of imported SKO iv. Copies of bills of entry (Ex-bond) no. 379 to 388 filed by the Indian Oil. Panipat refinery clearly indicating on that the same that duty relates to "quantity cleared at Ambala Terminal as per withdrawal out turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the present case, since the said judgment relates to the provisions under the Customs Act. The Customs Act provides for a procedure for challenging the assessment of a Bill of Entry before the Commissioner (Appeals). He further submits that ratio of the judgment in the case of ITC Ltd. (supra) is not applicable under the Excise Act. Learned Counsel also relied upon the judgment of the Larger Bench in the case of M/s Shree Balaji Warehouse etc. Vs CCE, Panchkula reported in 2023 (9) TMI- 1478-CESTAT Chandigarh (LB) wherein it has been categorically held that the refund of service tax is maintainable in the absence of any challenge to assessment or self-assessment. Learned Counsel also submits that the Larger Bench' decision cited supra has been followed by this Tribunal in the case of M/s Grand Prix Engineering Pvt. Ltd. Vs CCE, Delhi-IV reported in 2023 (10) TMI 731- CESTAT Chandigarh, which was a case of refund under the Central Excise Act and it was held that the refund claim would be maintainable in absence of any challenge to assessment or self-assessment in appeal. 7. Learned Counsel further submits that the Revenue has relied upon the judgment in the case of Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the Excise Duty as well as the Customs Duty on the SKO pumped during the disputed period. Further, I find that the appellant has produced on record number of documents cited supra viz. copy of PLA for the months of July 1999 to December 1999 evidencing payment of Excise Duty for the clearance affected from 15.07.1999 to 31.12.1999, photocopies of TR-6 Challans No.71 dated 01.07.1999 to No.198 dated 13.12.1999 vide which the Excise Duty was originally deposited during July 1999 to December 1999, list of invoices issued during July 1999 to December 1999 showing clearance of above consignment of imported SKO. The appellant has also produced the copy of the certificate issued by IOCL, Kandla clearly mentioning that no Excise SKO cargo was pumped in KBPI, Ex. Kandla at all during the year 1999-2000. The appellant also produced detailed chart on the total clearance of SKO from April 1999 to December 1999 on which Excise Duty has been paid except the quantity which was received as duty paid by Ambala. The appellant has also submitted tank-wise detail of receipt and issue of SKO during the period from July 1999 to December 1999. The appellant has also produced certificate of Chartered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment or self-assessment in appeal or not?" 9. The Larger Bench of this Tribunal passed an order on 29.09.2023 in favour of the appellant and it was held by the Larger Bench that refund claims are maintainable in the absence of challenge to the self-assessment under the Service Tax Regime. After the Larger Bench decision, the appeal was listed for hearing on merits but the Department again raised an objection on the maintainability of the refund claim filed by the appellant in view of the judgment of the Hon'ble Delhi High Court in the case of BT (India) Pvt. Ltd. Vs UOI, W.P (C) 13968/2021n dated 20.09.2023. 10. To counter the preliminary objection of the Department, the learned Counsel submits that the BT (India) judgment is distinguishable from the Larger Bench order and the same does not apply to the present case because both the judgments operate on different facts and issues. Learned Counsel further submits that the Larger Bench order arose out of the claim for refund of service tax that was erroneously deposited but the BT (India) judgment arouse out of a claim for refund of unutilized CENVAT credit on export of services. Both the refund claims are different as in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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