CCT, Medchal – GST Versus Visakha Industries Ltd
Central Excise
2018 (12) TMI 242 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 28-11-2018
Appeal No. E/30566/2018 – A/31491/2018
Central Excise
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL)
Shri V.R. Pavan Kumar, Superintendent for the Appellant.
Shri R. Muralidhar, Advocate for the Respondent.
ORDER
Per: M.V. Ravindran
1. This appeal is filed by the revenue against the Order-in-Appeal No. HYDEXCUS- MD-AP2-0252-17-18-CE dated 19.02.2018.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the refund claim filed by the respondent. The respondent in this case was a manufacturer of dutiable items and had opted for provisional assessments during the period October, 2012 to September, 2013. Subsequently, on finalisation of the said provisional assessments it was noticed that respondents had paid excess duty and they filed refund claim for the said amount which was rejec
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the amounts as these refunds are arising as consequential relief, on a decision by Tribunal holding in respondent's favour on merits. He also went into the judgment of the Apex Court in the case of Adison & Company Ltd (supra) and held that it may not be applicable in the facts of this case.
4. Learned departmental representative after giving overall picture of the issue involved, submitted that the judgment of the Apex Court in the case of Adison & Company Ltd is directly on the point; that it is not in dispute that respondent had issued credit notes subsequent to the clearances effected by them and also not in dispute that the provisional assessments were finalised which resulted in excess payment. Further, he submits that the Apex Court in the case of Adison & Company Ltd specifically stated that there has to be an evidence to show that buyer of the goods has not been passed on the amount of the duty. He specifically reads Para 21 and submits that in the case in hand, the responde
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passed by the Tribunal on 04.05.2016. It is his submission that after recording clearly and holding on this ground that appeal needs to be allowed, the first appellate authority further went into the details of the issue of applicability of ratio in the case of Adison & Co. Ltd. Learned counsel submits and produces before the Bench that the Tribunal's order dated 04.05.2016 was appealed to the Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh but were withdrawn on the ground of monetary limit. It is his submission that as on date, the Tribunal's order granting them consequential relief holds field and is not set aside and hence the first appellate authority is correct in coming to such a conclusion.
6. On consideration of the submissions made, I do find that the first appellate authority was correct in coming to a conclusion that the respondent herein is eligible for the refund of the amount claimed by them as a consequential rel
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eration of the Tribunal ruling. I have perused the Tribunal ruling leading to the refund, wherein the Tribunal examined the identical dispute where refund was denied on the ground of unjust enrichment; and unequivocally records the setting aside of the impugned orders with 'consequential relief' if any. In the face of an unambiguous direction, the lower authority cannot be justified in crediting the impugned refund to the Consumer Welfare Fund since this very aspect has been decided in the appellant's favour by the Tribunal order leading to the impugned refund claim. On this ground alone, the impugned order, being violative of judicial discipline, is legally unsustainable.” (emphasis supplied)
9. Since the refund claim filed by the respondent in this case has arisen out of the consequential relief granted by the Tribunal by order dated 04.05.2016, and that the said order holding the field are not set aside, and that appeals were filed were withdrawn would mean that the Tribunal's ord
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