TMI Blog2024 (3) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. P. NAGESWARA RAO, MEMBER (TECHNICAL) Shri B. Venugopal, Advocate for the Assessee. Shri V.R. Pavan Kumar, AR for the Revenue. ORDER This Tribunal, vide Final Order No. A/30004/2023 dt.10.01.2023, had allowed this appeal, which order have been recalled vide Miscellaneous Order No. M/30156/2023 dt.08.06.2023. The issue involved was refund of amount deposited by the appellant - a manufacturer of cement. The appellant in some cases, sells cement to the customer on FOR destination basis. The issue was whether the freight from the factory of the appellant to the destination (customer s premises) has to be added to the assessable value or not. Revenue was of the view that the said amount is includible in the assessable value as per the ruling of Hon ble Supreme Court in the case of Commissioner vs Roofit Industries Ltd [2015 (319) ELT 221 (SC)], whereas the appellant s contention was that their case is covered by the subsequent judgment of the Hon ble Supreme Court in the case of Ispat Industries Ltd [2015 (324) ELT 670 (SC)], wherein it was held that the buyer s premises can never be the place of removal as the goods have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limits prescribed. If the non-payment of duty is due to fraud, collision or willful misstatement or suppression of facts or violation of Act or Rules with an intent to evade payment of duty such notice can be issued within an extended period of limitation of 5 years. It is essential that a notice under Section 11A has to be issued to recover any differential amount of duty. It often happens during the course of enquiry or investigation, that the assessee pays the some or all of the disputed amount as duty. But that can only be treated as a deposit and it cannot be considered as demand of duty until it has been appropriated through an order issued in pursuance of a show-cause notice issued under Section 11A. In this case the amounts have not been appropriated and therefore they can only be considered as deposits and cannot be considered as duty. Since, no show-cause notice was issued to recover the differential duty, the amounts in dispute can only be considered as deposits. For this reason, the limitation prescribed under Section 11B for refund does not apply to this case. 8. We also consider the submissions of the learned authorized representative for the Revenue that judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact of ER-1 Return not being filed, as asserted by the Appellant, had a direct bearing on the outcome of the Final Order. The Final Order has allowed on the ground that ITC case will not be applicable as ER-1 Return was not filed. But for this error, the outcome of the Final Order should have been to dismiss the Appeal. Therefore the AR submits that ROM petition should be allowed. 5. Opposing the ROM Application, the Learned Counsel appearing on behalf of the Appellant submits that there was no malafide intention while they have asserted that ER-1 Returns were not filed by the Appellant. As a matter of fact, at the time of making his submissions, the Appellant s Senior Official was available in the Court and only after checking this fact with this official, the Learned Counsel has made his submission about non-filing of ER-1 Returns. Further, as the said amounts in question i.e. (refund involved) was not shown in the normal course of self assessment tax, but the same was shown in a different column at serial no. 9 of the ER-1 Return (Arrears), the Appellant carries impression that this amount was not paid on account of any self assessment and hence such an assertion was made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the appeal was heard denovo by the Bench on 03.10.2023 and the order was reserved. 8. Learned Counsel for the appellant points out that initially the appellant had filed refund claim for Rs.6,33,12,253/- on 10.08.2016. This amount included an amount of Rs.2,12,51,406/-, which was paid in the matter of SCN dt.18.09.2018, which was settled by the settlement commission, vide Final Order dt.04.05.2016 relating to the period October 2010 to March 2015. Accordingly, the appellant filed a revised refund claim dt.21.09.2016 for Rs.4,22,85,418/- (Rs.6,33,12,253/- (-) Rs.2,12,51,406/-), which amount has been deposited for the period April 2014 to June 2015, subsequently in June/July 2015. The said refund claim for the balance amount of Rs.4,22,85,418/- was rejected vide OIO dt.07.11.2016, observing that the ruling of Ispat Industries is not applicable and the refund claim has been filed after more than one year of payment/deposit. In appeal filed by the assessee, the Commissioner (Appeals), vide OIA dt.31.08.2017 held that in view of the terms and conditions of the purchase order in the instant case, the goods are to be delivered at the buyer s premises; acceptance of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the contentions of the Revenue, learned Counsel for the appellant/assessee urges that there is a huge difference in the assessment procedure under the Customs Act, as compared with the Central Excise Act. Under the Customs Act, the importer/exporter files the shipping bill or bill of entry and each such shipping bill/bill of entry is assessed by the department, which is an appealable order. Whereas, under the Central Excise provisions, the assessee self assesses the tax at the time of each clearance of the goods from the place of removal and files the return periodically showing their self assessed turnover and admitted tax liability therein. Admittedly, in the facts of the present case, the appellant has neither included the amount of freight in the assessable value at the time of clearance nor has amended their returns later on, nor issued any supplementary invoice on the buyer for revising the transaction value. Thus, there is no case made out of the deposit of the said amount by way of self assessment and hence, the contention of Revenue has no legs to stand. Further, Revenue has produced copy of return for the subsequent period where the appellant has reflected the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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