TMI Blog2023 (9) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... on that they were not filed within six months from the date of issue of the notification, but the Addendums that were subsequently issued did specifically allege that the refund applications were time barred because they were filed after the expiry of six months from the date of issue of the Notification. The Addendum, as noticed above, was issued to add something to the already issued show cause notices. The show cause notices did mention the issuance of the Notification and also the date on which the refund applications were filed. In the present case the factual position had not changed and the Addendums had called upon the respondent to explain why the refund application should not be rejected as being barred by time on the facts stated in the show cause notice. The aforesaid two decisions rendered in WIPRO INFORMATION TECHNOLOGY VERSUS COMMR. OF C. EX., BANGALORE [ 1998 (10) TMI 205 - CEGAT, MADRAS] and M/S. JMC PROJECTS (INDIA) LIMITED VERSUS COMMISSIONER OF SERVICE TAX AHMEDABAD [ 2014 (4) TMI 174 - CESTAT AHMEDABAD] would, therefore, not help the respondent. The refund applications filed by the respondent on 15.12.2017 pursuant to the issuance of the Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had claimed refund of the excise duty, it would be appropriate to reproduce this Notification which is as follows: Notification: 11/2017-C.E. (N.T.) Dated April 24, 2017 Heena Powder and Paste - Exemption under Section 11C for period from 1-1-2007 to 1-3-2013 Whereas the Central Government is satisfied that according to a practice that was generally prevalent regarding levy of duty of excise (including non-levy thereof) under section 3 of the Central Excise Act, 1944 (1 of 1944), (hereinafter referred to as the said Act), on Heena Powder and Paste falling under Chapter 33 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods), was not being levied according to the said practice, during the period commencing on the 1st day of January, 2007 and ending with the 1st day of March, 2013; 2. Now, therefore, in exercise of the powers conferred by section 11C of the said Act, the Central Government hereby directs that the whole of the duty of excise payable under section 3 of the said Act on the said goods but for the said practice, shall not be required to be paid in respect of the said goods on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot eligible to avail cenvat credit also during the period on Henna Powder and Paste. 11. Now, therefore, M/s. Prem Mehandi Center, Khasra No. 678/2, Desuri Road, Vill- Vopari, Marwar Junction, Distt-Pali is hereby called upon to show cause and explain to the Assistant Commissioner, Central Goods Service Tax Division-D, having his office at Ground Floor, TDM Office Campus, BSNL, Mahavir Nagar, Pali-306401 (Rajasthan), within 7 days from the date of receipt of this notice as to why the refund claim of Rs. 33,90,897/- out of Rs. 1,45,92,582/- filed by them should not be rejected for the reasons stated herein above. (emphasis supplied) 6. The relevant portion of the second cause notice dated 09.03.2018, which is the subject matter of Excise Appeal No. 50420 of 2019, is reproduced below: 4. Whereas, in view of the above referred notification, M/s. Prem Mehandi Centre, Raipur has claimed refund to central excise duty so paid on Heena cone/Paste during the period 01.04.2011 to 31.03.2013. xxxxxxxxxxxxxx 6. Whereas, on perusal of the invoices submitted by the assesse, it is noticed that they have not collected central excise duty from their buyers and the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 has overriding effect on time limit of one year provided in sub-section 1 of the Section 11B of the Central Excise Act, 1944. Therefore, where refund has been arising out of exemption under Section 11C of the Central Excise Act, 1944, the refund has to be filed within six months from the date of such Notification. In this case, the notification was issued on 24.04.2017 and the refund claim was required to be filled on or before 23.10.2017, whereas the refund claim was filed on 15.12.2017 and is time barred. xxxxxxxxxxx A. ISSUE REGARDING UNJUST ENRICHMENT 1. During the course of examination of the invoices forwarded along with the claim and draft OIO it is observed that the assessee was paying C.Ex. duty on the MRP declared. On verification of invoice, it appears that they had not charged C.Ex. duty from their immediate buyer i.e., their dealer and wholesaler, however the product was ultimately sold on MRP to the ultimate customer. The MRP was cum duty price, constituted C.Ex. duty also and thus duty had been passed on to the ultimate consumer and thus the concept of unjust enrichment taken place. (emphasis supplied) 8. A similar Addendum dated 20.06.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant on 15.12.2017 is well within the time limit, of one year as prescribed under section 11B of the CEA, 1944. xxxxxxxxxx 5.4.3 I find that the adjudicating authority has been placed erroneous reliance on the decision given in the case of M/s Redington India Ltd. Vs Commissioner of Customs, Chennai reported in 2011-TIOL-863-CESTAT-MAD]. On other hand I rely on recent decision given by the Hon'ble Hyderabad Tribunal in the case of HYDERABAD POWER INSTALLATIONS (P) LTD. VERSUS C.C.E., C. S.T., HYDERABAD-II (supra) wherein it has been held that since there is conflict in the time limit prescribed by the provisions of section 11C and section 11B, the provision of section 11B would prevail by applying the legal principle of harmonious construction. I find that the said decision is the latest one, I therefore hold that the benefit of the said decision should be extended to the appellant and the refund claims should not be denied on the ground of time bar issue to the appellants. 5.5 Now I am going to decide the issues of unjust enrichment raised in addendums one by one. xxxxxxxxxxx 5.5.6 xxxxxxxxxxxxx. In this case, buyer and seller relationship has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal; (iv) Non-mentioning of the Final Order in the refund claim cannot be made a reason to apply the time limit of six months contemplated under section 11C; (v) In any view of the matter, if there is a contradiction in the time limit specified in section 11C and section 11B, the time limit contemplated under section 11B would be applicable; and (vi) To support the contention of the respondent that the burden of excise duty had not been passed to the buyers, a certificate issued by the chartered accountant was enclosed. This conclusively proves that the burden had not been passed. The department is, therefore, not justified in asserting that the respondent had failed to prove that the burden of duty had not been passed. 13. The submissions advanced by the learned authorised representative appearing for the department and the learned counsel appearing for the respondent have been considered. 14. In order to appreciate the contentions, it would be appropriate to reproduce the relevant provisions of section 11B and section 11C. 15. Section 11B deals with refund of duty and interest and is as follows: Section 11B. Claim for refund of duty and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, the date of such judgment, decree, order or direction; (emphasis supplied) 16. Section 11C deals with a situation where duty of excise not levied or short-levied as a result of general practice is not to be recovered and it is as follows: Section 11C. Power not to recover duty of excise not levied or short-levied as a result of general practice.- (1) Notwithstanding anything contained in this Act, if the Central Government is satisfied (a) that a practice was, or is, generally prevalent regarding levy of duty of excise including non-levy thereof on any excisable goods; and (b) that such goods were, or are, liable (i) to duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or (ii) to a higher amount of duty of excise than what was, or is being, levied, according to the said practice, then, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or, as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Notification that the respondent claimed refund of central excise duty paid on Henna Powder and Henna Paste during the period 01.04.2011 to 31.03.2013. The proviso to sub-section (2) of section 11C provides that the person claiming refund has to make an application in the form referred to in sub-section (1) of section 11B before the expiry of six months from the date of issue of the said Notification. 21. Sub-section (1) of section 11B provides that any person claiming refund of any duty of excise with interest may make an application for refund of such duty and interest before the expiry of one year from the relevant date in such form and manner as may be prescribed . 22. It is clear that the proviso to sub-section (2) of section 11C only refers to the form contemplated in sub-section (1) of section 11B and not to the time period prescribed in sub-section (1) of section 11B. The time limit for making the application is provided in the proviso to sub-section (2) of section 11C and it provides that the application for refund has to be made before the expiry of the six months from the date of issue of the Notification. It would, therefore, not be correct to even suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation issued by the Central Government and not because duty became refundable as a consequence of a judgment, decree, order or direction of the Appellate Authority or Appellate Tribunal or any Court. 26. Learned counsel for the respondent supported the view expressed by the Commissioner (Appeals) and submitted that in view of the aforesaid decision of the Tribunal in Hyderabad Power Installations , the Commissioner (Appeals) committed no error in holding that the application for refund should have been filed within one year. 27. The submission advanced by the learned authorized representative appearing for the department has force. 28. In the first instance, as is clear from the proviso to sub-section (2) of section 11C, the application for refund of duty has to be filed within six months from the date of issue of the said Notification. The only requirement is that it should be filed in the format prescribed in section 11B(1). As discussed above, the time limit of one year prescribed in section 11B(1) would not be applicable as the proviso to section 11 C(2) specifically provides that the application for refund has to be made before the expiry of six months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year. 31. Learned counsel for the respondent also submitted that two Addendums issued to the two show cause notices contain substantial allegations that were not even part of the show cause notices and, therefore, should be ignored and if this be so, the contention of the department that the refund application should have been filed within six months from the date of issue of the Notification would not sustain since this was not even an allegation in the show cause notices. To support this contention, learned counsel for the respondent placed reliance upon the decisions of the Tribunal in Wipro Information and JMC Projects . 32. It is not possible to accept the contention advanced by the learned counsel for the respondent. 33. Black s Law Dictionary, 9th Edition defines Addendum to mean something to be added, esp. to a document; a supplement . 34. The Law Lexicon Dictionary, 3rd Edition defines Addendum to mean a thing that is added or is to be added . 35. It is true that the two show cause notices that were issued to the respondent did not state that the refund applications were liable to be rejected for the reason that they were not filed within six month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it is clear that the department was fully aware of the fact of appellants clearing peripherals for the computer. The addendum to the show cause notice has given up invocation of various rules including the rule pertaining to imposition of penalty. Each show cause notice should comprise of one set of facts leading to the controversy about one such clearance and demand made therein. By addendum, the department had chosen to give up invocation of the provisions of various rules, thus changing the colour and complexion of the allegation and adding new facts and amending the show cause notice. Therefore, it has to be held that amended show cause notice is not in the nature of mere addendum nor in the form of clarification. Addendum dated 7-3-1985 is therefore, a fresh show cause notice with new facts raised therein and therefore, the demands for the period from 1-3-1984 to 18-4-1984 covered by show cause notice dated 10-7-1984 is clearly beyond the period of six months and the same is hit by time bar. Further the department had full knowledge about the appellants clearing peripherals. Detailed floor plan showing the old and new buildings and the area earmarked for manufacturing activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08, where classification of the service provided was not doubted at all. The judgments relied upon by the Revenue that the changes proposed were only mathematical corrections or facts available at the time of issue of show cause notice dated 22-10-2008, are thus not applicable to the facts of the present proceedings. The Addendum dated 29-9-2009 and its further corrigendum dated 17-5-2010, therefore, fails as the same has changed the entire basis of the first show cause notice dated 22-10-2008. Having said that it is further observed that Addendum dated 14-12-2009 has not been issued in suppression of the first show cause notice dated 22-10-2008, therefore the first show cause notice dated 22-10-2008 and its corrigendum dated 29-9-2009 survive. 39. This decision also does not support the case of the respondent for the reason that the dispute regarding classification of the service was raised in the Addendum which was not raised in the show cause notice. 40. As noticed above, in the present case the factual position had not changed and the Addendums had called upon the respondent to explain why the refund application should not be rejected as being barred by time on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
