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2015 (11) TMI 1344 - CESTAT NEW DELHI

2015 (11) TMI 1344 - CESTAT NEW DELHI - TMI - Denial of refund claim - remission of duty - damaged / destroyed goods - Misdeclaration of value - Held that:- Before clearance of the goods and during the process of loading, one of the drums fell down as a result of which its content got damaged and as a result of this the consignment itself was not despatched and the same was dispatched subsequently under the invoice no. 1815 dated 31/3/2003. There is also no dispute at the time of clearance of th .....

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order sanctioning the refund. - Decided in favor of assessee.

If prior to the period of supply, the rate at which the goods were to be supplied had been decided and the same was reduced only subsequently, the judgment of Apex Court in the case of MRF Limited Vs. CCE Madras [1997 (3) TMI 104 - SUPREME COURT OF INDIA] would be applicable and the respondent would not have eligible for refund. For ascertaining this factual position, the matter has to be remanded - while the Commissioner ( .....

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egi, DR For the Respondent : Shri Harishankar, Senior Advocate, Shri Sunil and Ms. Privadeep, Advocates ORDER Per: Rakesh Kumar The facts leading to filing of this appeal by the Revenue are, in brief, as under: 1.1 The respondents are manufacturers of optical fibre cables for telecommunication. They cleared two drums of optical fibre cables under invoice no. 960 dated 25/11/2002 and the duty had been paid through PLA. However, at the time of loading, one drum fell down and the cables got damage .....

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consignment of optical fibre cables cleared under invoice no. 1075 dated 11/12/2002, by mistake, higher rate was mentioned. The duty paid on the higher amount was ₹ 1,701/-. Since the appellant had received payment only of the lower amount, they applied for refund to the Assistant Commissioner of the excise duty of ₹ 1700/- paid by them. The appellant cleared a consignment of optical fibre cables to M/s. Bharti Touchtell under invoice no. 71 dated 25/4/2003. In the invoice, the price .....

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l only at the rate of 69,800 per K.M. Since, the duty had been paid on the higher price at the rate of 1,36,500/- per K.M., they submitted refund claim for refund of ₹ 1,48,253/- to the Assistant Commissioner. 1.2 During the period from October, 2002 to January, 2003, the appellant cleared certain consignments of optical fibre cables to M/s. Tata Tele Services. In this case, also the price at which the duty was paid was higher than the price which was actually received by the respondent an .....

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und claims were rejected by the Assistant Commissioner. However, on appeal being filed to Commissioner (appeals), the Assistant Commissioners order was reversed by the Commissioner of Central Excise (appeals). 1.5 Against this order of the Commissioner (appeals) this appeal has been filed by the Revenue. 1.6 The Revenue in these appeals mainly relies upon the Apex Courts judgment in the case of MRF Limited Vs. CCE Madras reported in 1997 (92) ELT 309 SC wherein it has been held that fluctuatio .....

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der Rule 16 of Central Excise Rules, i.e., they should have taken back the goods for repair/re-conditioning on taking the CENVAT Credit of the duty paid and later on should have cleared the goods on payment of duty; that as regards the refund claim of ₹ 1071/- in respect of the goods cleared under invoice 1075 dated 11/12/2002 while the excise invoice mentioned supply rate for the goods as ₹ 47,500/- per k.m. the commercial invoice mentioned the correct rate of ₹ 46,500/- and a .....

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ed Vs. CCE Madras (Supra) and the judgment of Honble Punjab & Haryana High Court in the case of Mauria Udyog Ltd. Vs. Commissioner of Central Excise reported in 2008 (2011) STR 319 P&H and also the Tribunals judgment in the case of Indian Explosive Limited Vs. CCE Hyderabad reported in 2012 (284) 259 (Tri-Bang), the refund claim would not be admissible. 4. Shri M.S. Negi accordingly pleaded that except for the refund claim of ₹ 1701/- in respect of the goods cleared under invoice .....

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e optical fibre cable packed in it were damaged as a result of which the consignments were not cleared; that the appellant have taken reimbursement of the value including duty of the damaged goods in respect of one drum which had got damage and in respect of 2nd drum which was not damaged, no reimbursement from insurance company has been claimed; that the consignment of two drums was subsequently cleared under invoice no. 1815 dated 31/3/2003 on payment of duty and as such the duty in respect of .....

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n the Commissioner (appeals) order allowing this refund claim; that as regards the refund claim for amount of ₹ 1,48,253/- in respect of the goods cleared under invoice no. 71 dated 25/4/2003, though the invoice as well as the purchase order mention the rate for the goods as ₹ 1,36,500/- per K.M., this rate mentioned was incorrect, as these goods had been supplied to M/s. Bharti Touch Tell and in terms of the rate contract with M/s. Bharti Touch Tell these goods were to be supplied a .....

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; 1,36,500/- per K.M. had been mentioned in the purchase order and the invoice and hence, Apex Courts judgment in the case of MRF Limited Vs. CCE Madras (Supra) would not be applicable; that as regards the refund claim of ₹ 87,479/- in respect of the supply to M/s. Tata Tele Services under their invoices during period from October, 2001 to January, 2003, during this period, the rate at which the goods were to be supplied had not been decided as a result of which the invoice had been raise .....

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uring period of supply the duty had been paid at the rate applicable to the previous purchase orders. 6. He, therefore, pleaded that there is no infirmity in the impugned order. 7. We have considered the submissions from both the sides and perused the records. 8. As regards, the refund claim of ₹ 1701 in respect of the invoice no. 1075 dated 11/12/2002, there is no dispute that while the commercial invoice mentioned the correct rate of 46,500/- the Central Excise Duty invoice mentioned the .....

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ms of optical fibre cable was to be cleared under invoice no. 960 dated 25/11/2002 and before clearance, the duty had also been paid. There is no dispute that before clearance of the goods and during the process of loading, one of the drums fell down as a result of which its content got damaged and as a result of this the consignment itself was not despatched and the same was dispatched subsequently under the invoice no. 1815 dated 31/3/2003. There is also no dispute at the time of clearance of .....

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) order sanctioning the refund of ₹ 26,702/-. 10. As regards, the refund claim of ₹ 1,48,253/- in respect of the goods cleared under invoice no. 71 dated 25/4/2003, while the invoice issued to M/s. Bharti Touch Tell and the purchase order placed by M/s. Bharti Touch Tell mention the rate as ₹ 1,36,500/- per K.M., a letter dated 22/7/2003 of M/s. Bharti Touch Tell addressed to respondent mentions that the correct rate should be 69,800/- as per the rate contract. There is no disp .....

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e wrong rate ₹ 1,36,500/- was mentioned in the purchase order and invoice, this would not be the case of revision of the case after clearance of the goods and Apex Courts Judgment in the case of MRF Limited Vs. CCE Madras (supra) would not apply. If as per the respondents rate contract with M/s. Bharti Touch Tell, the goods were to be supplied at the rate of ₹ 1,36,500/- and it is only subsequently after supply of the goods, the rates were reduced after negotiations to ₹ 69,8 .....

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