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CCE, Nagpur (in both appeals) Versus M/s Jadhao Gears Pvt. Ltd. And (Vice-Versa)

2018 (1) TMI 462 - CESTAT MUMBAI

Refund of double tax paid - case of appellant is 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 N/N. 33/2012-CE - Held that: - 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 have also produced a certificate from M .....

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d it was held that the substantial benefit of the said notification cannot 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 .....

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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 the Central Excise Act, 1944 read with subsection (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 19 .....

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fication. The issue in these appeals being common and also being by the same parties, the appeals are taken up together for disposal, alongwith the cross objections. 3. The brief facts are that the appellant is a registered manufacturer engaged in manufacture of D.R Gin Machine, Cotton Bailing Press, Automation Accessories & Spares falling under Chapter Sub-heading No.84451910 and also in chapter 40 and 850 The appellant filed refund claim for an amount of ₹ 28,67,431/- pertaining to d .....

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authority rejected the refund claim vide Order-in-Original dated 28th November 2014, inter alia on the grounds that M/s Raghuvir presented the documents namely Original SHIS licenses, copy of proforma invoice, copy of the notification and undertaking in terms of para (i) of the notification to the Superintendent, Central Excise, Range - Amravati on 15/10/2013 i.e. after effecting clearances of the capital goods during 11th October 2013 to 12th October 2013 to M/s Raghuvir by the appellant. The a .....

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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 .....

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n the said capital goods for transfer of ownership by M/s Raghuvir. Hence, it was held by the Assistant Commissioner that the clearances of capital goods by the appellant to M/s Raghuvir without observing the conditions of the notification, cannot be treated as failure or technical lapses. 4. On similar facts in the other Appeal No.E/86192/15 wherein the buyer of the goods is M/s Banshi Cotton Private Ltd, Rajkot (hereinafter referred to as M/s Banshi for short), wherein the appellant had applie .....

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appellant, as claimed by the appellant, the duty on the said goods has already been paid by M/s Banshi by way of debiting the SHI scrip as per provisions contained in Notification No.33/2012-CE, at. 09/07/2012. 6.2 I find that the main contention of the appellant is that they have been taxed twice on the same transaction - once by way of debiting SHI scrip which amounts to payment of duty and the second time by actually paying duty at the time of clearance of the subject goods to M/s Banshi and .....

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een misplaced and hence, as M/s Banshi was pressing for the early clearances, and also due to ignorance of procedures, the appellant cleared the subject goods on payment of duty on the advice from jurisdictional officers, that they could 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 .....

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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 other place as per his convenience as at the customers' end, the goods have .....

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rd, I have gone through the concerned documents produced by the appellant before me which has also been produced by the appellant before the lower authority. 6.7 Firstly, I find that the SHI scrip has been debited on 14/08/2013 by the concerned customs authority against proforma invoice dt 20/07/2013 issued by the appellant for the subject goods. The said debit has been made by the customs officer under notification No.33/2012-CE, at. 09/07/2013. The customs officer has issued a letter dt 14/08/ .....

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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 (attested by Customs Officer) which has not been disputed by the lower authority also. The appellant has also produced a certificate from M/s Banshi that they have procured the machineries (as described in Annexure) from the appellant and that they have paid the central excise dut .....

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n 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 licens .....

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the duly debited SHI scrip as the same had been misplaced by them, they had duly paid duty on such clearances which was the only bonafide option available to him under such circumstances. It would be unfair to disallow the substantial benefit of the notification to the appellant for a procedural error i.e. inability to produce duty paid Scrip at the time of clearance of goods. If the facts of the transaction are clearly verifiable from the documents available, then there is no need to deny the s .....

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M/s Surabhi Inds Vs CCE reported in 2007 (208) ELT- 578 (AAR) quoted by the lower authority in the impugned order does not apply to the facts of the instant case as in the said ruling, the Tribunal was deciding a situation wherein provisions of a different exemption notification issued under other statutes was being read into the exemption notification under consideration. 6.11 Lastly, lower authority has held that the benefit of the notification is subject to actual user condition and hence re .....

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cleared under SHI scrip has been fillfilled or not as I am in agreement that the said goods have actually been cleared under a duly debited SHI scrip. 6.12 The exemption under notification No.33/2012-CE, dt. 09/07/2012 is granted at the time of clearances of the subject goods from the factory gate. So, naturally the actual user condition is to be verified only after the appellant has already taken the benefit of the notification in the form of exemption on such clearances which have been made f .....

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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 scri .....

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ments and ultimately traced the same to the sales personnel, who confessed to have received the documents long back but pleaded ignorance about the further use of the same. Thus the Order-in-Appeal appears to have been passed without appreciation of the actual facts and under the presumption that the duty on the said goods had already been paid by the buyer by way of debiting the SHI scrip as per provisions contained in Notification No.33/2012-CE, which is not correct. The fact is that the goods .....

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r the provisions of Notification the Central Excise Officer has to take a number of steps like comparison of written advice received from the Customs with the scrip presented by the assessee, make endorsements and undertake validation. If the goods have already been cleared much earlier on payment of duty and the documents are presented much later, there is hardly any role for the Central Excise Officer to play. It is not correct to say that, as held in the Order-in-Appeal, that once the SHI scr .....

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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 fac .....

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