Department cannot adjust unconfirmed demand against refund payable to the assessee

Dear Professional Colleague,

Department cannot adjust unconfirmed demand against refund payable to the Assessee

We are sharing with you an important judgement of the Hon’ble CESTAT, Delhi in the case of Bharat Sanchar Nigam Ltd. Vs. Commissioner of Central Excise, Jaipur [(2014) 51 taxmann.com 10 (New Delhi - CESTAT)] on following issue:

Issue:

Whether Department can adjust unconfirmed demand against refund payable to the Assessee?

Facts & Background:

Bharat Sanchar Nigam Ltd. (“the Appellant”) filed refund claim of Rs. 11,79,720/- for the excess amount paid. The Appellant was issued a Show Cause Notice dated January 17, 2007 (“SCN”) to show cause as to why their refund claim of Rs. 11,79,720/- should not be rejected. The Appellant submitted their reply dated May 25, 2007 and was sanctioned entire refund claim by the Assistant Commissioner vide Order-in-Original No. 44/R/2007.

However, the Assistant Commissioner later issued a corrigendum dated July 17, 2007 to the SCN stating that as the Appellant had taken Cenvat credit to the tune of Rs. 11,18,182/- on the strength of the invoices for Capital goods issued by their Head Office, the same was not admissible as their Head Office was not registered as a registered dealer and therefore asking why their refund claim should not be rejected to the extent of Rs. 11,18,182/-.

Later, the Commissioner (Appeals) also upheld the adjustment of Rs. 11,18,182/- out of the total refund of Rs. 11,79,720/-and the Appellant was refunded only the net (remaining) amount of Rs. 61,538/- in form of Cenvat credit. Being aggrieved, the Appellant preferred an appeal before the Hon’ble CESTAT, Delhi.

Held:

The Hon’ble CESTAT, Delhi observed that there has been no Show Cause Notice given to the Appellant for showing cause as to why Cenvat credit amount of Rs.11,18,182/- (adjusted from the amount of refund sanctioned) was inadmissible to them and even if the corrigendum issued on July 17, 2007 is an attempt to be treated as a Show Cause Notice, the said corrigendum falls fatally short of the requirement of a notice under Section 73 of the Finance Act, 1994.

Accordingly, it was held by the Hon’ble Tribunal that while confirmed demand can be adjusted from the amount of refund, there is no provision to adjust unconfirmed demand from the amount of refund and in the instant case, Rs. 11,18,182/- cannot be held to be a confirmed demand.

Hence, the Department was directed to refund back Rs. 11,18,182/- to the Appellant along with applicable interest.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks & Best Regards.

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

Flat No. 34B, Ground Floor, Pocket - 1,

Mayur Vihar, Phase - I,

Delhi – 110091, India

Email: bimaljain@hotmail.com

Web: www.a2ztaxcorp.com

Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the authors nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this document nor for any actions taken in reliance thereon.

Readers are advised to consult the professional for understanding applicability of this newsletter in the respective scenarios. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. No part of this document should be distributed or copied (except for personal, non-commercial use) without our written permission.