The Commissioner of Central Vs. Nippon Denro Ispat Ltd.

The Commissioner of Central vs Nippon Denro Ispat Ltd.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Jan 21, 2008

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Citation: sooperkanoon.com/46864
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: M Ravindran, A T K.K.
Decided On: Jan 21, 2008
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

The Commissioner of Central

Respondent

Nippon Denro Ispat Ltd.

Excerpt

.....of the ld. sdr is that the commissioner (appeals), has erred in sanctioning the refund claim to the respondent. it is his submission that the commissioner (appeals) has not considered the law in proper perspective and should have considered the fact that there was no protest when the amounts were paid by the respondent. the ld.consultant submit that the judgment of the constitution bench of the supreme court in the case of mafatlal industries ltd., would indicate that if an appeal is filed by the respondent against the classification of their product, it would mean that they have discharged the duty liability under protest. he relies upon the decision of the tribunal in the case of hutchison max telecom pvt. ltd. v. cce, mumbai as and also the judgment of the hon'ble supreme court in the case of mafatlal industries and more 5. on perusal of the impugned order, we find that while allowing the appeal filed by the respondent against the rejection of the refund claim; the commissioner (appeals) has held as under: i, however find force in appellant's contention in respect of oio no. 256 to 258/dn.ii/99 dated 04/01/2000 that the unjust enrichment clause cannot be invoked in that case as the duty in question was paid subsequent to the date of clearances and the sales were made by auction where the ultimate price was decided at the given time. in view of the above and taking into consideration all the facts had circumstances and applying the ratio of the hon'ble supreme court bombay high court, delhi high court, gujrat high court and hon'ble tribunal supra. i allow the appeals partly by setting aside the oio no. 256 to 258/dn.ii/99 dated 04/01/2000 passed by the a.c. c.ex. dn.ii, nagpur but rejecting the appeals in respect of oio's no. 251 to 255/99/dn.ii dated 03/01/2000 and oio's no. 260 to 261/dn-ii/99 dated 07/01/2000 as not maintainable.6. from the above reproduced portion of the order, it can be seen that the commissioner (appeals) has correctly followed the law.....

Full Judgment

1. This appeal is filed by the revenue against the order-in-appeal No.PKA/761 to 763/M-III & NGP/2001 dated 21/09/2001, vide which allowed the appeal filed by the respondent in respect of the refund claims, which were rejected by order-in-original No. 256 to 258/Div.II/99 dated 05/01/2000.

3. The issue involved in this case is regarding the refund claim filed by the appellants subsequent to the modification of the classification list filed by the respondents. The adjudicating authority modified the classification list filed by the respondents and due to such modification the assessee sought refund of their excess differential duty paid by them. The adjudicating authority rejected all the refund claims filed by the respondents. On an appeal filed by the respondents, the Commissioner (Appeals) upheld the order-in-original which rejected refund claim, except the order-in-original No. 256 to 258/Div-II/99 dated 05/1/2000.

4. The contention of the Ld. SDR is that the Commissioner (Appeals), has erred in sanctioning the refund claim to the respondent. It is his submission that the Commissioner (Appeals) has not considered the law in proper perspective and should have considered the fact that there was no protest when the amounts were paid by the respondent. The Ld.

Consultant submit that the judgment of the Constitution Bench of the Supreme Court in the case of Mafatlal Industries Ltd., would indicate that if an appeal is filed by the respondent against the classification of their product, it would mean that they have discharged the duty liability under protest. He relies upon the decision of the Tribunal in the case of Hutchison Max Telecom Pvt. Ltd. v. CCE, Mumbai as and also the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries and more 5. On perusal of the impugned order, we find that while allowing the appeal filed by the respondent against the rejection of the refund claim; the Commissioner (Appeals) has held as under: I, however find force in appellant's contention in respect of OIO No. 256 to 258/Dn.II/99 dated 04/01/2000 that the unjust enrichment clause cannot be invoked in that case as the duty in question was paid subsequent to the date of clearances and the sales were made by auction where the ultimate price was decided at the given time.

In view of the above and taking into consideration all the facts had circumstances and applying the ratio of the Hon'ble Supreme Court Bombay High Court, Delhi High Court, Gujrat High Court and Hon'ble Tribunal supra. I allow the appeals partly by setting aside the OIO No. 256 to 258/Dn.II/99 dated 04/01/2000 passed by the A.C. C.Ex.

Dn.II, Nagpur but rejecting the appeals in respect of OIO's No. 251 to 255/99/Dn.II dated 03/01/2000 and OIO's No. 260 to 261/Dn-II/99 dated 07/01/2000 as not maintainable.

6. From the above reproduced portion of the order, it can be seen that the Commissioner (Appeals) has correctly followed the law as has been settled. It is undisputed in this case, that differential duty was paid by the respondent before the classification was decided in their favour. As such, we find that the issue is squarely settled in favour of the respondent by the various decisions of the Tribunal and Hon'ble Supreme Court and various High Courts as has been correctly held by the Commissioner (Appeals). As such, we do not find any merits in the appeal filed by the revenue and the same is rejected.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties The Commissioner of Central vs Nippon Denro Ispat Ltd. Same Subject Service Tax Same Judge M Ravindran, A T K.K.