2008 (4) TMI 137 - AT - Central Excise

At the time of clearance abatement of sales tax was claimed @ of 10% as applicable to Tamilnadu - But in other States (where major part of goods was sold) sales tax rates ranging from 1% to 20% - In respect of goods sold in States where the rate of sales tax was less than 11% department demanded differential duty - assessee identified cases where they had paid tax higher than 11% & preferred refund claims revenue can t proceed to demand differential duty during pendency of refund claims

Summary

Issues:
- Change of respondent's name in the cause-title
- Assessment of differential duty on goods sold in various states
- Provisional assessments and refund claims
- Direction issued by the lower appellate authority

Analysis:
1. Change of respondent's name in the cause-title:
The judgment begins with addressing the miscellaneous applications seeking a change of the respondent's name from M/s. KIWI TTK LTD. to M/s. SARA LEE HOUSEHOLD AND BODYCARE INDIA PVT. LTD. The tribunal, after hearing both sides and considering the Fresh Certificate of Incorporation, allows the applications. It directs the change of the respondent's name in the cause-title of both appeals to M/s. SARA LEE HOUSEHOLD AND BODYCARE INDIA PVT. LTD.

2. Assessment of differential duty on goods sold in various states:
During the period of dispute, the respondents were involved in the manufacture of various products and used to stock-transfer them to depots across the country. The issue arose when different states levied sales tax at varying rates, leading to demands for differential duty by the department. The original authority confirmed these demands without considering the refund claims made by the assessee for cases where they had paid higher sales tax than necessary. The appellate authority treated the assessments as provisional and directed a fresh order. The Revenue's appeals were against this decision.

3. Provisional assessments and refund claims:
The tribunal notes that the assessments were not provisional, and the abatement claimed on sales tax within Tamilnadu was correct. However, for goods sold in states with lower sales tax rates, the abatement claimed was higher than allowed, leading to demands for differential duty. The assessee had also claimed refunds for cases where they had paid higher sales tax. The tribunal held that the original authority should have considered both the show-cause notices and refund claims together. The direction for finalization of provisional assessments was deemed unwarranted.

4. Direction issued by the lower appellate authority:
The judgment sets aside the impugned orders and directs the original authority to consider any excess or short payments of duty, refund any excess amount to the assessee after set off, subject to proof against unjust enrichment. The tribunal pronounced the operative portion of the order on 1.4.2008, disposing of the appeals in favor of the assessee.