Kolkata CESTAT’s Order dated August 27, 2021: Dismissing recovery claims of “erroneous refunds” by revenue department in yet another favourable judgement for taxpayers.

The Customs, Excise and Service Tax Appellate Tribunal (“CESTAT”)’s Kolkata Bench vide order dated August 27, 2021, in the matter of M/s. RNB Carbides & Ferro Alloys Private Limited  has decisively upheld refund entitlements to the assessees against the claim of recovery by the revenue department of “erroneous refunds” and has provided useful clarifications regarding the point of sale of goods and inclusion of freight charges in the assessable value of goods for the purposes of excise duty calculation.

Brief Facts of the Case:

The assessees were engaged in the manufacture and sale of Ferro Alloys, Ferro Silicon and Ferro Slag and its factory units were located within the State of Meghalaya which enjoyed the benefit of Central Excise duty exemptions under Notification No. 32/99-CE dated 08.07.1999 (“Original Notification”), which was later amended by certain Subsequent Notification. The Original Notification operated by way of refund, where under the assessee first paid the central excise duty leviable and thereafter received refund. In this case, the assesee had self-assessed the duty on clearances, paid the applicable excise duty and then filed the refund claims. The said refund claims were processed and granted but subsequently, the assessee’s books of accounts were scrutinized upon which the revenue department objected to the inclusion of freight charges in the assessable value of goods.

It was the revenue department’s case that the assessee had overvalued its products by including freight charges which ought not to have been included under Section 4(1) of the Central Excise Act, 1944 read with Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (“Rules”). Several Show Cause Notices were issued against the assessees for recovering the alleged excess refunds. Further, numerous rounds of cross-litigation followed whereby the revenue department claimed that the assessee had suppressed the fact that outward freight was included in the assessable value and that it had also “mis-declared the Place of Removal leading to over valuation of assessable value for claiming excess refund.” The revenue department relied on the CESTAT’s earlier judgment in Montage Enterprises Pvt. Ltd.4 and Aditya Birla Chemicals India Ltd 5.

The assesee in turn, inter alia, contended that the relevant contracts/purchase orders for sale of finished products stipulated FOR destination prices and that the act of sale occurred at the buyers’ premises and therefore, duty had been paid correctly considering the value of goods inclusive of transportation charges up to the buyers’ premises. The assessee relied on the Supreme Court judgement passed in Roofit Industries Limited  and Ispat Industries Limited .

Reliance was also placed on Circular No. 1065/4/2018-CX dated 08.06.2018, which stated that in case of a contract providing FOR sale, assessable value had to be determined by including all costs up to the point of sale, which in this case was the buyers’ premises. The assessee also contended that even if the transportation charges were not includible for the purpose of Central Excise valuation, the Department was bound to refund the duty paid thereon.

Issues:

The central issues that came before CESTAT was:

  1. Whether the assessee had correctly availed the benefit of Original Notification and was righteous in considering freight charges for calculating assessable value of excise goods when the sale was supposed to be completed on delivery and acceptance by buyer and if not, then whether the revenue department was entitled to recover the refunds already granted claiming it to be a case of “erroneous refund”?

Findings and Judgement:

The CESTAT acknowledged that the contracts/ purchase orders in the instant case were ‘door delivery’ at all-inclusive prices and noted that the purchasers reserved the right to inspection and to not accept the goods if found to be sub-par and that the assessee thereby bore the intermittent risk of loss and/or damages. The CESTAT further examined the definition of “sale” under Section 2(h) of the Central Excise Act, 1944 (“Act”) and noted that under the Act, sale takes place only upon transfer of the possession of the goods by the manufacturer to the buyer which occurred at the buyers’ premises in the present case and therefore rejected the revenue department’s claim that place of removal / point of sale cannot be buyer’s place.

Hence, it was concluded that the invocation of Rule 5 by the revenue department was misplaced because the said Rule applied to cases only where goods were sold at the place of removal but were to be delivered elsewhere, which was inapplicable in this case. Further, CESTAT observed that the assessee’s case fell within the purview of the exception to the aforesaid Rule 5 and that in light of Rule 7 read with Rule 11, the assessable value of the goods was the price charged by the assessee at the place of sale indicating that all charges up to the place of sale are includible, including freight.

The CESTAT upheld the precedential value of Roofit Industries Limited and dismissed the revenue department’s claim regarding the recovery of amount already refunded by considering it as an “erroneous refund” under Section 11A of the Act and stated that  the refund already sanctioned by relying on the judicial legal precedents as well as the clarifications issued by the Central Excise Board cannot be termed as “erroneous” as further confirmed in Gauhati High Court’s Judgement in the case of Topcem India vs. Union of India 2021 (376) ELT 573.

Further, the CESTAT confirmed the assessee’s contentions that even if the assessee had paid higher Central Excise duty than was leviable, the Department was not at liberty to retain any part of such excess amount collected as duty because it can retain only those sums which represent the actual duty leviable under a statute and therefore, any excess amount collected as duty ought to be refunded. Reiterating its own observations in Aditya Birla Chemicals, CESTAT highlighted that “..the duty amount paid legally as well as the amount legally not payable but paid, both were entitled for refund if the refund claim was filed as per law.” In light of the above contentions, the appeals filed by the revenue department were dismissed and since the issue was decided on merits, the limitation aspect was also not considered.

W&B Take:

This judgement has far-reaching effects on the refund rights of the concerned assessees who were hitherto affected by ultra vires show cause notices issued by the revenue department. Stakeholders can consider undertaking normal litigation route (adjudication and appellate) or, the writ route to challenge these arbitrary demand notices seeking to recover allegedly granted “erroneous” refund under Section 11A.

For any queries, please contact:

VINEET NAGLA
Partner
Head – Taxation
vineet.nagla@whiteandbrief.com

PRATEEK BANSAL
Associate Partner
prateek.bansal@whiteandbrief.com

Dated: November 16, 2021
Author: Vineet Nagla & Prateek Bansal

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