Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1423

Whether Duty is payable on the goods absorbed by the assessee and shown as expenditure in p & L A/c and had not been passed on to the customer?

Case:Commissioner of C. Ex., Coimbatore v/s. Flow Tech Power
 
Citation:2006 (202) E.L.T. 404 (Mad.)
 
Issue: - Refund - Chartered Accountant’s certificate and profit and loss account conform that duty paid on impugned goods had been absorbed by assessee - No substantial question of law arises for consideration of High Court.
 
Brief Facts: -Respondent-assessee was engaged in the manufacture of components for Drip/Sprinkler Irrigation System falling under heading 84.24 and PVC/HDPE/LDPE/LLDPE pipes and tubes falling under heading 39.19 of the Central Excise Act. They cleared the goods without payment of duty claiming benefit of exemption under Notification No. 46/94 dated 1-3-94 with the Commissioner of Central Excise. During factory visit, Revenue found that PVC/HDPE/LDPE pipes manufactured by respondent were also cleared by them in the guise of parts of Drips/Sprinkler Irrigation System, on which they availed the benefit of the said notification claiming classification under Chapter Heading 84.24 of the erstwhile Central Excise Tariff Act, 1944.
 
Show Cause notice was issued and the Commissioner passed Order dated 26-8-96 holding that the pipes removed from the factory could not be treated as an input for the network that was fabricated outside the factory, i.e. Drip/Sprinkler irrigation system, as the pipe itself is an excisable product classifiable under Specific Heading 3917.00 of the erstwhile Central Excise Tariff Act, 1944 and are dutiable. So, the exemption under Notification Nos. 46/94 and 52/95 was available only if the goods were classifiable under Chapter Heading 3917 of the erstwhile Central Excise Tariff Act, 1944. Hence, the Commissioner confirmed the demand and imposed a penalty of Rs. 1,00,000/- and further allowed Modvat Credit admissible to the respondent.
 
In appeal before the Tribunal, respondent contended that the items in question manufactured were also classifiable under 84.24 and they had rightly granted exemption under the said notification and the said items were not Tubes and Pipes and other plastics for classification under Heading 3917.00.
 
The Tribunal in its Order dated 5-9-2000 [2001 (130) E.L.T. 541 (Tri. - Chennai)] allowed the appeal.
 
Consequently, the assessee filed a refund claim on 2-3-2001 for Rs. 24,47,444/- by way of cash and Rs. 71,70,360/- by way of credit in RG 23A Part II Account on the ground that the Tribunal in its order had held that the pipes used with other components in Drip/Sprinkler Irrigation System should be classified under 84.24 only and the parts of the system also under 84.24 and that they are paying duty under protest vide their letter No. 1768/94-95 dated 14-3-95 which was duly acknowledged by the Department. Since there was difference in the working of duty amount claimed, the respondent vide their letter No. 141 dated 5-12-2001, filed a Revised Refund Claim for an amount of Rs. 25,58,795/- as PLA payment and Rs. 64,72,809/- as RG 23A Part II payment. The respondent was issued a Show Cause Notice dated 26-4-2002 asking them why the refund claim should not be rejected under section 11B of the Central Excise Act, 1944.
 
The Assistant Commissioner vide Order dated 21-8-2003 rejected the refund claim by holding that the letter of the protest was not filed under Rule 233B, their claim is time barred. The Adjudicating Authority rejected the refund claim as time bar only, but did not go into the other grounds mentioned regarding the unjust enrichment and captive consumption. Since the order was a non-speaking order, the Assistant Commissioner filed an appeal for modification of Order dated 21-8-2003 under Section 35E (2) of the Central Excise Act, 1944 which is pending before the Commissioner (Appeals). Thus the question of unjust enrichment is yet to be decided by the Commissioner (Appeals) in the Appeal filed by the Department.
 
In the mean time, respondent-assessee also filed appeal before the Commissioner (A). The said appeal was allowed and it was held that the respondent was eligible for refund of duty paid as it was under protest. It was further held that the respondent had discharged the burden of proving that the incidence of duty in respect of the impugned goods was not passed on to their customers.
 
Aggrieved by the decision of Commissioner (Appeals), Revenue filed appeal before the Tribunal. The Tribunal passed Order dated 3-3-2005 upholding the order of the Commissioner (Appeals) and held that the duty was paid under protest and hence question of time bar would not arise. The Tribunal further held that duty burden had not been passed on to the customers and hence there was no unjust enrichment.
 
Against the said order, Revenue is in appeal before the High Court.
 
Appellant’s Contention: -Revenue submitted that the Lower Authorities had failed to take into consideration that the respondent had not followed the procedure contemplated under Section 233B of the erstwhile Central Excise Rules, 1944 and hence, the assessee did not pay the duty under protest. Hence the claim by the respondent for refund was clearly barred by limitation. Further, it was submitted that the authorities had merely relied upon the Certificate issued by the Chartered Accountant and the Profit and Loss Account filed by the assessee and they have not conducted any independent verification.
 
Reasoning of Judgement: -The High Court noted the that there was a factual finding by the Authorities Below that the duty had been paid under protest and the question of time bar would not arise. In respect of unjust enrichment, the facts reveal that the price was a composite one fixed by the Ministry of Agriculture. The duty had been absorbed by the assessee and it was submitted that the Chartered Accountant’s Certificate dated 8-7-2002 and the profit and loss account, also confirm that the duty paid on the impugned goods had been absorbed by the assessee and had been shown as expenditure in profit and loss account and had not been passed on to the customer.

It was held that there was no error in the order of the Tribunal.

Decision: -Miscellaneous Appeal dismissed.          

 

*****

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com