Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Ashok Jindal (Judicial Member) allowed an appeal wherein the refund claim was denied in the impugned order on two grounds:
(a) On account that duty has been paid excess, therefore they are not entitled to take excess claim of refund of excess duty paid.
(b) The freight has not been included in the assessable value of the goods, therefore, they are not entitled to claim refund claim thereon.
Counsel for the appellant submitted that at the time of the clearance they were paying duty but in the impugned period certain goods were returned from the buyers on which they have paid the duty which has been cleared on payment of duty, as they have cleared the goods and paid duty at the time of clearance, therefore they have not paid any excess duty and they have claimed refund of the actual duty paid by them in cash. It was further submitted that freight has not been included in the assessable value.
AR submitted that as the goods have been returned to the appellant and they have taken the Cenvat credit thereon, it is not clear from the records that whether any process has been taken on goods and they have been cleared on payment of duty. It is a fact that when they have taken the credit excess payment of duty, therefore, they are not entitled to claim refund of excess duty paid in cash.
The Tribunal noted that it was a fact on record that at the time of clearance of goods, the appellant paid duty and claim refund thereof only, there was a Cenvat credit relying in Cenvat credit account unutilized due to return of goods already cleared by the appellant on payment duty, further held that appellant was entitled for refund of duty paid in cash at the time of clearance of goods relying on the decision of Shree Nath Industries v. Commr. Of CE, 2018 (364) E.L.T. 904. Further, it was a claim of the appellant that they have not included the transportation charges in the assessable value which was evident from the invoices placed before me, in these circumstances, Tribunal held appellant was entitled to claim refund of duty paid on service tax paid on transportation charges.[Pearl Drinks Ltd. v. C.G.& S.T., 2021 SCC OnLine CESTAT 2711, decided on 24-11-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
