Sanctioned Refund cannot be considered as erroneous


Quick Summary
The CESTAT has ruled that a refund previously sanctioned by the department cannot be considered an 'erroneous refund'. This decision was made in a case where the revenue sought to recover excess refund from the appellant, M/s. RNB Carbides & Ferro Alloys Private Limited. The tribunal found that the appellant's inclusion of freight charges in the assessable value was in line with sale terms and prevailing departmental clarifications at the time.

Court :
CESTAT Kolkata

Brief :
In M/s. RNB Carbides & Ferro Alloys Private Limited v. Commissioner of Central Excise, Shillong [Excise Appeal No.187 of 2010 dated August 27, 2021], the current appeal has been filed against Order-in-Appeal No.29/SH/CE(A)/GHY/09 dated December 18, 2009 ("OIA"), wherein the revenue after scrutinizing the M/s. RNB Carbides & Ferro Alloys Private Limited ("the Appellants") accounts book held that the Appellants had overvalued its products by including freight charges and issued the Show Cause Notices ("SCN") to recover the excess refund which were availed by the Appellants.

Citation :
Excise Appeal No.187 of 2010 dated August 27, 2021

In M/s. RNB Carbides & Ferro Alloys Private Limited v. Commissioner of Central Excise, Shillong [Excise Appeal No.187 of 2010 dated August 27, 2021], the current appeal has been filed against Order-in-Appeal No.29/SH/CE(A)/GHY/09 dated December 18, 2009 ("OIA"), wherein the revenue after scrutinizing the M/s. RNB Carbides & Ferro Alloys Private Limited ("the Appellants") accounts book held that the Appellants had overvalued its products by including freight charges and issued the Show Cause Notices ("SCN") to recover the excess refund which were availed by the Appellants.

Larger Period of Limitation was invoked by the Revenue on the ground that the Appellant should not have included outward freight in the Assessable Value and there was misdeclaration of "Place of Removal" which led to over valuation of Assessable Value thereby claiming excess refund.

The Appellant relying on the case of Commissioner of Customs and Central Excise, Aurangabad – v. Roofit Industries Limited [2015 (319) ELT 221 (SC)] and Circular No. 59/1/2003-CX dated March 03, 2003 and Circular No. 988/12/2014-CX dated October 20, 2014 contended that the Place of Removal had to be determined by referring to the Place of Sale, which in the case was the buyer’s premises.

The Hon’ble CESTAT, Kolkata observed that the Appellants’ case fell within the purview of exception to Rule 5 and referred to Rule 7 read with Rule 11 of Central Excise (Valuation) Rules, 2000 ("the Valuation Rules") which mentions that the Assessable Value would be the price charged along with the additional charges upto the place of sale including freight.

Noted that the transportation costs of the Appellant would be included by relying on Circulars (supra) put forth by the Appellants for the reason that the terms and conditions of the sale unambiguously stipulates that the act of sale would be completed upon on-door delivery which in the case of the Appellant was the buyer’s premises.

Further placed reliance on the case of Topcem India vs. UOI [2021 (376) ELT 573] and held that the refund already sanctioned cannot be termed as "erroneous refund" more so view of the fact that refund has been duly sanctioned by the Department as per the laws prevailing then duly supported by the Central Board of Excise and Customs ("CBEC") clarifications at relevant point of time.

FAQ :

The revenue authorities sought to recover an excess refund from M/s. RNB Carbides & Ferro Alloys Private Limited, arguing they had overvalued their products by including freight charges and misdeclared the 'Place of Removal'.

The appellant contended that the 'Place of Removal' should be determined by the 'Place of Sale', which was the buyer's premises, and relied on relevant case law and circulars.

The CESTAT held that a refund that has been sanctioned cannot be termed as an 'erroneous refund', especially when it was sanctioned according to the laws and clarifications in place at that time.

The tribunal noted that the sale terms stipulated on-door delivery at the buyer's premises, supporting the inclusion of transportation costs in the assessable value.

The CESTAT referred to Rule 7 read with Rule 11 of the Central Excise (Valuation) Rules, 2000, which allow for the inclusion of additional charges up to the place of sale, including freight.

 



Judgement posted by

Service

FCA, FCS LLB with21 Yrs of Experience inTaxation Indirect and Direct: Education Qualification: B.Com (Hons) Chartered Accountants Company Secretary LLB Qualified SAP FI/CO Consultants Professional Membership: Chairmanof Indirect Tax Committee of PHD Chamber of Commerce Member of Indirec ... Read more

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