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Judgment
The present appeal is directed against the impugned order dated 22.04.2019 passed by the Commissioner (Appeals) whereby the Commissioner
(Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original.
Briefly the facts of the present case are that the appellants are engaged in the manufacture of HRPO/ HRSPO coils, CRFH/ CRCA Coils, CRCA
sheets, HR Plates and sheets, MS Slabs, Cobbles, Galvanized Corrugated sheets, etc., falling under Chapter 72 of CETA, 1985. The appellant had
cleared Prime Carbon Steel Slabs of 220 mm thickness to M/s Welspun Corp. Ltd. during the month of May 2016 & June 2016 on payment of Central
Excise duty @ 12.5% on the basic price @ Rs.26,234.62. However, as per the Purchase Order dated 21.04.2016, the basic price to be adopted was
Rs.24,052/-. The error in charging excess price and consequently excess Excise duty was noticed by M/s Welspun Corp. Ltd. and communicated to
the appellants and the payment was settled only to the extent of the agreed price of the goods sold. M/s Welspun Corp. Ltd. vide their letter dated
14.04.2017 addressed to the Deputy Commissioner of Central Excise, Mumbai declared and confirmed that they have not taken CENVAT credit of
excess Excise duty of Rs.18,08,271/-. As the appellant has remitted excess amount of excise duty to the Account of Government hence a claim of
refund was filed by the appellant. Thereafter, the Deputy Commissioner issued SCN dated 23.04.2018 proposing to deny the refund claim on various
grounds. The appellant filed detailed reply to the SCN along with various documents relied upon by the appellant in support of his claim of excess
Excise duty paid. The Assistant Commissioner, thereafter, passed Order-in-Original dated 27.09.2018 rejecting the refund claim of Rs.18,08,271/-.
Aggrieved by the said order, the appellant filed appeal before the Commissioner who rejected the appeal. Hence, the present appeal.
Heard both the parties and perused the records of the case.
Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly
appreciating the facts and the documentary evidence on record. He further submitted that due to the error in the System, the appellant has taken the
base price as Rs.26,234-62 whereas, in fact, as per the Purchase Order dated 21.04.2016, the base price should have been Rs.24,052/-. He further
submitted that the appellant has paid excess duty of Rs.18,08,271/- because the buyer paid the duty as per the Purchase Order. He further submitted
that both the authorities have not considered the terms and conditions of the Purchase Order and the various documents produced by the appellant. He
also submitted that the appellant produced the letter written by M/s Welspun Corp. Ltd. dated 14.04.2017 addressed to the Deputy Commissioner of
Central Excise, Mumbai declaring and confirming that they have not taken CENVAT credit of the excess duty of Rs.18,08,271/-. He further
submitted that the Commissioner (Appeals) instead of examining the computation of the value of the goods, Excise duty paid and actual duty paid etc.
has proceeded to discuss on the liability for payment of service tax on the freight charges as recorded in Para 11 that since no Excise duty is payable
on freight charges instead Excise duty is payable on the total price of the goods as per the Agreement. Learned Commissioner has wrongly come to
the conclusion that no excess Excise duty has been paid by the appellant. The learned Commissioner has also recorded that the appellant has not
produced any evidence to prove excess payment of duty. Learned Counsel further submitted that the appellant has produced on record the following
documents which show that:
(i) the Appellant had made excess payment of duty on account of error in adoption of higher price of Rs.26,234/- instead of Rs.24,052/- per MT as per
the terms of the PO from the buyer;
(ii) Invoice wise computation of excess duty of Rs.18,08,271/- paid on clearances to Welspun Corp (Annexure B to the reply to SCN Page 64-72 of
Memo of Appeal);
(iii) Welspun Corp vide letter dated 14.04.2017 to their jurisdictional DCCE (page 790 confirming excess payment of duty of Rs.18,08,271/- by JSW
Steel Ltd due to system error and that they have not taken CENVAT credit of the said amount;
(iv) CA Certificate dated 03.11.2018 as Annexure A to the reply (Page 31 of MOA) certifying that JSW Steel Ltd have received only Rs.27,700/- per
MT (Basic price of Rs.24,052/- + 2% CST + Freight charges) in respect of Slabs of 220 mm thickness in terms of Purchase Order No.
WCL/SLAB/IMP-011/15-16 dated 21.04.2016 from Welspun Corporation Ltd and have not received the excess basic price of Rs.2,183/- and Excise
duty thereon amounting to Rs.273/- per MT as charged in the Excise Invoices;
(v) CA Certificate dated 12.11.2018 issued by SOG & Associates, Gandhdham, Kutch (Gujarat) and Annexure B (page 32) certifying that Welspun
Corp has not paid to JSW Steel Ltd. the excess basic price of Rs.2,183/- PMT and excess excise duty of Rs.273/- PMT charged in the excise
invoices. Further, it is certified that the excess excise duty so charged in the excise invoices has not been taken as CENVAT credit by Welspun Corp.
Ltd.
4.1. He further submitted that the adjudicating authority and the Commissioner (Appeals) have not disputed the computation of excess duty paid but
have recorded the findings that the appellants have not submitted any evidence in support of the claim for refund of excess duty paid.
On the other hand, learned AR reiterated the findings of the impugned order.
After considering the submissions of both the parties and perusal of the material on record, I find that as per the Purchase Order, the base price on
which duty should have been paid was Rs.24,052/- whereas the appellant has paid the Excise duty at 12.5% on basic price at Rs.26,234.62/- resulting
in excess payment of duty to the tune of Rs.18,08,271/-. The appellant filed refund claim of the excess duty paid along with various documents in
support of his claim but both the authorities have not examined the documents and the statements submitted by the appellant in support of their claim
so much so the Chartered Accountant Certificate issued by the CA of the appellant as well as of the M/s Welspun Corp. Ltd have not been
considered. The impugned order has simply observed that the appellant has failed to prove the payment of excess duty without considering the
plethora of documentary evidences on record, the CA Certificate produced on record have been totally ignored without any reason. Further, the letter
dated 14.04.2017 written by M/s Welspun Corp. Ltd to the Deputy Commissioner has also been ignored without any reason. The documents produced
in the Appeal Paper book and few sample invoices shows the payment of excess duty but the same have not been considered and verified by the
authorities below.
In view of this, I am of the considered opinion that this case needs to be remanded to the original authority with a direction to pass a fresh order
after examining the various documents placed on record or which may be submitted by the appellant in support of their claim and thereafter pass a
reasoned order in accordance with law. The original authority is directed to pass the fresh order within a period of two months of receipt of certified
copy of this order and after following the principle of natural justice. Accordingly, the appeal is allowed by way of remand.
(Order pronounced in Open Court on 28/06/2021)