2017 (5) TMI 1746 - AT - Central Excise

Rectification of Mistake - errors apparent from the record or not - Section 129B of Customs Act 1962 - refund of accumulated credit - HELD THAT - The applicant sought refund of accumulated credit that remained unutilised at the time of closure. Each refund claim needs to be tested on the facts leading to the claim. In the claim of the appellant credit accumulated because of failure to add sufficient value through manufacture and appellant is as pointed out supra an end user to that extent. Just as a final consumer cannot claim a refund of tax liability devolving on a manufacturer precedent in the chain of value added an assessee who is an end user is similarly excluded from entitlement for refund. Had inputs representing the accumulated credit been available in stock those could have been cleared by debit such credit thus obviating the need for claiming refund. Such is not the situation of the applicant. Grant of refund would therefore be tantamount to acknowledging incorrect application of rate of duty on the manufacturer preceding the applicant in the value added chain. In the absence of such a finding it would be contrary to Article 265 of the Constitution to reduce the tax liability of that assessee. The denial of refund by the lower authorities cannot be faulted. The rectification sought in the application is recall of the order to find in favour of the applicant by complying with the requirements of judicial discipline. After considering the various decisions cited in favour of applicant the outcome has not varied - Application dismissed.

Summary

Issues:
1. Plea for recall of the order based on errors apparent from the record.
2. Applicability of decisions of different High Courts and Tribunal in the matter.
3. Hierarchical superiority between single member and division Benches.
4. Validity of the contention that a different finding would have been the outcome.
5. Refund claim based on accumulated credit and its denial.

Analysis:

1. The applicant sought a recall of the order, claiming errors apparent from the record. They argued that the outcome would have been different if their submissions during the hearing had been considered. However, the Tribunal clarified that all submissions were duly considered, and the orders were not rendered by relegating them to irrelevancy.

2. The applicant contended that the Tribunal inappropriately distinguished a decision of the Chennai Bench, which should not have been discarded. They argued that the order failed to consider decisions of various High Courts, which they believed would have led to a decision in their favor. However, the Tribunal emphasized that each claim is disposed of based on facts, statutory provisions, and compliance with specific procedures.

3. The issue of hierarchical superiority between single member and division Benches was raised. The applicant argued that a single member Bench should unquestionably acquiesce to orders of a division Bench. However, the Tribunal clarified that the Customs Act does not confer hierarchical superiority based on numerical strength, and both types of benches have equal status.

4. The applicant contended that a different finding would have been the outcome if certain High Court decisions had been considered. However, the Tribunal emphasized the importance of judicial discipline and highlighted that the lead decision of the High Court of Karnataka must be followed. The denial of the refund claim was justified based on the applicant's status as an end user.

5. The refund claim was based on accumulated credit that remained unutilized. The Tribunal explained that the denial of the refund was appropriate as the applicant, being an end user, could not claim a refund similar to a final consumer. Granting the refund would have implied incorrect application of duty rates on the manufacturer preceding the applicant in the value-added chain.

In conclusion, the Tribunal rejected the application for recall of the order, stating that compliance with judicial discipline did not warrant a different outcome. The denial of the refund claim was upheld based on the applicant's status and the applicable legal principles.