`Personal Ledger Account – Refunds Refunds post GST In most of the States, now abolished VAT Legislations had the popular method of using Demand Drafts for paying off Net Tax Liabilities (‘NTL’), while Center gradually had absolutely mandated the electronic payment for paying paying off the NTL for service tax and Central Excise Duty. For depositing any NTL under Central Excise and Service Tax Law, an assessee (or ‘taxpayer’) could ‘taxpayer’) could make payment in respective tax code via GAR 7 Challan on the EASIEST Portal using Internet Banking. The Central Excise Legislation had one difference compare to the Service Tax Legislation, that it had a system of an Electronic Cash Ledger called Personal Ledger Account or Account-current (‘PLA’). We can already draw some association with the Electronic Cash Ledger (‘ECaL’), which wh ich is provided under Section 49 (1) of the Central Goods and Service Tax Act, 2017 read with respective State Goods and Service Tax Act(s) (collectively called as ‘GST Act’) . The Th e fo llo win g la ys a d iscu is cussi ssi on i nto nt o the t he PLA P LA,, as it w as bef b efor ore e and an d it ’s after ’s after effects post implementation of Goods and Service Tax (‘GST’) Regime.
A. The Life and Times of PLA It’s again emphasized that, the system of PLA was only present under the Central Excise but not under the Service Tax, there lies an interesting reason behind such differentiation. The last thing we know about Central Excise payment date was 5 th /6 th of every next month except for the month of March which is 31 st March. It’s It ’s would be an exaggeration to say that Central Excise Duty has and always been a tax on every manufacture, also every removal was the collection point.
When we say “removal”, it was literally every removal, that excise duty was supposed to be paid. That means, if a manufacturer, manufactures a product today, and removes it tomorrow, he had to remove it by paying excise duty, by drawing Demand Draft upon his Bank. Imagine the chaos, each and every removal required a visit to the bank for tendering excise duty . To rise above such challenge, a system known as PLA was introduced. The assessee would deposit an appropriate amount in PLA via Challan and the amount stood as a Credit
Balance . Every time, a removal is caused, all the assessee had to do was Debit
1
`Personal Ledger Account – Refunds Refunds post GST PLA PL A with the excise duty amount in the manually maintained register. Consequently the visits to Banks were reduced to minimal. The Th e pay ment me nt meth me thod od was wa s diff di ffer eren entt for fo r servi se rvi ce tax since si nce the th e begi be ginn nnin ing, g, Rule Ru le 6 of the first ever Service Tax Rules, 1994 (‘STR’) prescribed that service tax shall be payable by the 15 th of next month, the need for a PLA was not felt. A similar payment system was adopted for Central Excise Duty in the near future as we last saw it. As on 30 th June 2017, PLA was alive without a soul. PLA was basically a pass through, therefore anybody seldom felt the need to maintain significant balance therein.
B. Resemblance between PLA with ECaL Similar to Central Excise Act, 1944 (the ‘ Excise E xcise Act’) Act ’),, GST Act provides two modes of paying tax liabilities viz. through Electronic Credit Ledger and Electronic Cash Ledger (‘ECaL’). The primary object for incorporating these ledgers is to sync the electronic return filing procedure. The Th e exci ex cise se duty du ty was wa s firs fi rstt depo de posi site te d vide vi de Chal Ch allan lan , incre in cre asi ng the th e cred cr edit it of PLA, PL A,
ER such credit could then be used to pay off NTL in the erstwhile excise returns ER1 . So is the case in the GST as well, the payment is made to the credit of ECaL, such credit is then used to pay off the NTL created upon submission of Form
GSTR 3B. Although ECaL carries the legacy of PLA, however ECaL is more comprehensive and covers tax liabilities arising out otherwise than returns as well. Service Tax Law with subordinate Rules had a very complicated and abysmal system of dealing with tax deposits. The total of GAR 7 Challan had to either be equal or more than the tax liabilities declared in ST 3 returns. In case, an assessee had deposited excess Service tax, the option of adjustment was restricted only for the next month, although the Courts had extended the meaning
of
next
month
to
subsequent
month(s).
Still
however,
it
was
cumbersome to keep track record of the Challans with the corresponding tax liabilities. The Joint Committee in its Report on Business process under GST had therefore recommended the use of ECaL for payment procedures.
2
`Personal Ledger Account – Refunds Refunds post GST PLA PL A with the excise duty amount in the manually maintained register. Consequently the visits to Banks were reduced to minimal. The Th e pay ment me nt meth me thod od was wa s diff di ffer eren entt for fo r servi se rvi ce tax since si nce the th e begi be ginn nnin ing, g, Rule Ru le 6 of the first ever Service Tax Rules, 1994 (‘STR’) prescribed that service tax shall be payable by the 15 th of next month, the need for a PLA was not felt. A similar payment system was adopted for Central Excise Duty in the near future as we last saw it. As on 30 th June 2017, PLA was alive without a soul. PLA was basically a pass through, therefore anybody seldom felt the need to maintain significant balance therein.
B. Resemblance between PLA with ECaL Similar to Central Excise Act, 1944 (the ‘ Excise E xcise Act’) Act ’),, GST Act provides two modes of paying tax liabilities viz. through Electronic Credit Ledger and Electronic Cash Ledger (‘ECaL’). The primary object for incorporating these ledgers is to sync the electronic return filing procedure. The Th e exci ex cise se duty du ty was wa s firs fi rstt depo de posi site te d vide vi de Chal Ch allan lan , incre in cre asi ng the th e cred cr edit it of PLA, PL A,
ER such credit could then be used to pay off NTL in the erstwhile excise returns ER1 . So is the case in the GST as well, the payment is made to the credit of ECaL, such credit is then used to pay off the NTL created upon submission of Form
GSTR 3B. Although ECaL carries the legacy of PLA, however ECaL is more comprehensive and covers tax liabilities arising out otherwise than returns as well. Service Tax Law with subordinate Rules had a very complicated and abysmal system of dealing with tax deposits. The total of GAR 7 Challan had to either be equal or more than the tax liabilities declared in ST 3 returns. In case, an assessee had deposited excess Service tax, the option of adjustment was restricted only for the next month, although the Courts had extended the meaning
of
next
month
to
subsequent
month(s).
Still
however,
it
was
cumbersome to keep track record of the Challans with the corresponding tax liabilities. The Joint Committee in its Report on Business process under GST had therefore recommended the use of ECaL for payment procedures.
2
`Personal Ledger Account – Refunds Refunds post GST
C. Features of PLA
1. No Substantive legislation The Th e prov pr ovis isio ions ns for fo r ma main inte tena nance nce of ECaL EC aL are ar e prov pr ovid ided ed unde un derr the th e GST GS T Act. Ac t. Quite Qu ite astonishingly however in pre GST Regime, post substitution of Central Excise Rules, 1944 (‘CER, 1944’) the PLA had no statutory enforcement. In fact, Supplementary Instructions Manual of CBEC issued post 2005, also had no provisions for maintaining of PLA.
2. PLA is a part of assessee’s assets The Th e PLA is a comp co mpos osit ite e of Debi De bits ts,, Cre dit s and the th e closi cl osi ng bal ance an ce.. The debi de bits ts represents utilization of a crystalized tax (regular or demand), the credits represents the deposits, while the closing positive balance represents the asset of an assessee. The closing balance of PLA is on same footings as an ordinary bank account.
3. Not the property of government As stated above, PLA is one of the current assets of an assessee, the property doesn’t pass upon the government by mere deposits in PLA. Reliance may be placed
on
Jay
Shree
Tea
&
Industries
Ltd.
vs
CCE,
Kolkata
2005(08)LCX0069 ; There is a distinction between the amount appropriate towards duty and amount deposited for payment of a duty. In a former case duty which has only been levied and paid evidently becomes the property prope rty of the Government and no person would be entitled to get it back unless there is a provision of law to enable that person to get the duty already appropriated back from the state or the Government. In the latter case, however, when an amount has been deposited to be appropriated thereafter towards duty which may fall due there having having no appropriation, appropriation, the the property in money does not pass to the Government unless the goods are cleared and the duty is levied.
3
`Personal Ledger Account – Refunds post GST 4. Straight forward refund Unlike the general refund claim procedures, refund of PLA is rather modest. In catena of judgments, it has been held that PLA re fund doesn’t face the objections of either Unjust Enrichment or the Time Bar, besides any other conditions of erstwhile Section 11B of Excise Act are also inapplicable. Reliance can be placed on;
Navdeep Packaging Industries vs CCE, Ahemdabad 2006(12)LCX0128
Welspun India Limited vs CCE 2009(08)LCX0027
Jay Shree Tea & Industries Ltd. case supra
Bijlalimoni Tea Estate vs CCE 2007(01)LCX0270
Further, Section 11B per se disqualifies PLA balance refund from the uphill of unjust enrichment, Refer clause (b) of Proviso to Section 11B(2).
5. Relevant Date for time limitation under Section 11B Although, it is squarely settled that, no time bar is applicable for PLA Refunds, there have been instances wherein the revenue had sought to impose time limitation of claiming refund. The revenue arguments sets on the premise that, relevant date for claiming refund has to be counted from the date on which Challan is deposited in the PLA viz. date of Credit. However, all such devious attempts to deny refund have been counteracted by the Courts. In Samrat
International (P) Ltd. vs CCE 1990(09)LCX0085 , the Hon’ble Supreme Court clearly laid down relevant date for an un-crystalized liability, shall be the
date on which duty is actually debited via returns and not the date of deposit by Challan. Similar judgments follows in Collector of Central Excise vs Delhi Cloth Mills
1993(09)LCX0051, Assam Industrial Corporation vs Collector of Central Excise 1983(10)LCX0060.
6. No Interest on PLA Balance
4
`Personal Ledger Account – Refunds post GST Although PLA balance is sort of deposit with government, the government is not bound to pay any Interest on the balance. The Interest on refund was government by Section 11BB of erstwhile Excise Act. The Hon’ble CESTAT in Navdeep
Packaging Industries case supra, holding that PLA Refund is not governed by Section 11BB, therefore, there is no requirement of paying interest on it.
D. Position of PLA post GST The GST w as i mplemented w ith effect from 01 July 2017, for a qu ite a time since then, the transitional procedures continued vide From TRAN 1 and will be continued till last date of TRAN 2 . Form TRAN 1 and TRAN 2 encapsulates various types of switching provisions for erstwhile closing balance of Credits, closing stocks, stocks lying with other parties etc. However, none of the
provisions in the GST Act or Rules contained migration of closing balance of PLA. The reason for such not migration are unknown and unpleasant. The only o ption left with a taxpayer having PLA bal ance as on 01 July 2017 is to seek a refund claim. No guidelines have been issued regarding claiming such refunds. A discussion is necessary therefore as to how can a taxpayer migrated under GST should claim refund of PLA Balance;
1. Eligibility of Refund Given that, no alterations have been made into the nature of erstwhile PLA regulations, it will be safe to say that GST Regime hasn’t embossed any special implications upon its refund formalities. To say it otherwise, PLA Refund shall continue to be governed as it was governed earlier. An FAQ published by the CBIC (erstwhile CBEC) on Mining Sector addressed the situation of PLA Balance; 43. What will happen to the balance available in the current account (PLA) under Central excise, deposited in cash in advance by any assesse? Answer: Balance in PLA will not be under transition to GST since that has not been appropriated to the Government account which will be determined post completion of the pending assessment. The same can be claimed as refund under the Central Excise Law.
5
`Personal Ledger Account – Refunds post GST
2. Determining Statutory Force It is crystal clear that, a balance in PLA is not a tax and not a property of government, but only kept with it. A government can extract tax only under the sanction of Article 265 of the Constitution of India, and not otherwise. Further apparently, provisions of Section 11B of Excise Act seems to be inapplicable to PLA refunds in as much as it per se governs the refund of either duty of excise or interest. However, clause (b) of Section 11B (2) exempts PLA Refund from unjust enrichment burden, implying that Section 11B may cover such refunds also. The Hon’ble Hig h Cou rt of Gujarat had an occas ion to rule on a similar conflict in INDO-NIPPON CHEMICALS CO. LTD. vs UOI 2002(02)LCX0431, wherein there was an argument proposed by the petitioner that clause (c) of proviso to Section 11B (2) is not an exception to Section11B(1) but only a surplusage. The Court though, discerned with the views of petitioner that such interpretation is not substantive enough to hold that clauses (c) is surplusage, therefore not governed by Section 11B ex facie . However in Hon’ble CESTAT in case of Navdeep Packaging Industries supra , has hold that impugned clause (b) is incorporated as an abundant precaution only to ensure that even by mistake, the provision of unjust enrichment is not applied for such refund. Further since such refund were governed under erstwhile Rule 173G (1A) of the CER, 1944, recourse cannot be taken to Section 11B ibid . Even after supersession of Rule 173G (1A) ibid , the ratio of Navdeep Packaging Industries harmoniously holds good, moreover ratio of Nippon Chemicals is not directly towards clause (b), therefore there should not be any confusion as to inapplicability of Section 11B ibid while adjudicating PLA refunds and treating it as an ordinary refund claim.
3. Form of Application
6
`Personal Ledger Account – Refunds post GST Since, the refund claim is an ordinary claim, there is no prescribed Performa, accordingly, normally it has been seen t hat, that Refund Claim is prefe rred as a business letter on either letterhead or ordinary blank paper. There is however, a school of thought, that Refund claim should be preferred in a modified format provided as Form R under Section 11B ibid . The primary thought process behind for presenting such format is to suit the adjudication process. However, at this juncture it is important , that re ference to Section 11B in Form R should be deleted, so that the adjudication officer not even by mistake applies provisions of Section 11B. Reliance can also be placed upon Circular No. 984/08/2014-CX dated 16/09/2014 which provides guidelines relating to pre deposits under Section 35F of Excise Act. Para 5.2 and Para 7 of t he circular provides that Pre deposits are not payment of duty, hence they need not be subjected to the process of refund under Section 11B, and a simple letter of refund along with self-attested supporting documents suffice the requirement of such refund claims. As far as the nature of refund claims goes, pre deposit and PLA are on similar footings, therefore procedure under this Circular harmoniously supports the simple refund claim procedure.
4. Litigation post filing of claim A denial of refund claim for PLA balance whether adjudicated under Section 11B or otherwise are appealable orders/ decisions under Chapter VIA Appeals of the Excise Act. 35. Appeals to Commissioner (Appeals).(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer………
From the mere reading of Section 35 (1) it is clear that, a refund claim filed under a business letter is adjudicated as a communication, such communica tion is an appealable order as appeal against the decision viz. first nature . If by some possibility, then such refund claim is adj udicated by the Adjudication Officer as
7
`Personal Ledger Account – Refunds post GST Order in Original, said order ex facie becomes appealable order of second
nature . The provisions of Section 35 ibid are saved by Section 142 (7) of the GST Act.
5. An adverse Judgment Despite, the law being settled that Section 11B is not applicable for the PLA Refunds, the Hon’ble Ahmedabad CESTAT sitting in Single Bench in case of
Valson
Polyster
Ltd.
vs
Commissioner
of
Central
Excise,
Daman
2011(04)LCX0259 has ruled an adverse order. The Tribunal has not only applied Section 11B for such refunds but also has held that the time bar for a
PLA Refund begins from the date on which Treasury Challan was deposited to make credit to it , relying upon Clause (B)(f) of Explanation to Section 11B. The judgm ent of the Single Mem ber Bench appears to be wholly contradicto ry with the settled law and violative of the precedents set by superior Courts. Following grounds can be taken to rebut the position taken in the judgment;
The judgmen t is per incuriam in as much as the bench didn’t considered the settled ratio of Hon’ble Supreme Court in case of Samrat International (P)
Ltd supra relied upon in Delhi Cloth Mills 1993(09)LCX0051 wherein the impugned date in clause (f) of Explanation to Section 11B has been interpreted as the date on which duty is paid and not the date on which Challan is deposited.
Valson Polyster is a single member bench judgment while Welspun India
Limited supra judgment from the same Ah medab ad be nch is a Divisio n bench judgmen t. As per the law of bench size precede nce the decis ion of Division Bench shall prevail over the Single Member Bench decision, as held in Down
Town Travels Pvt. Limited 2011(07)LCX0024.
From the body of the judgment it is clear that none of the judgments are quoted above were brought to the notice of the Bench, therefore in absence of
8
`Personal Ledger Account – Refunds post GST a reasoned order, the Valson Polyster judgment is not a precedent to be followed.
9
`Personal Ledger Account – Refunds post GST
Central Excise Series No. 2AA
FORM Application for refund of Personal Ledger Account Balance
To The Assistant Commissioner, Central Excise, Division _________ Collectorate ______
1.
I/We, Ms/ _______________________, are registered with the Central/ State Goods and Service Tax Department vide GSTN No. ________________. We we re registered under the Central Excise Act, 1944 (‘ t he Act’ ) vide Registration No. _________ __________, having been migrated into the Goods and Service Tax with effect from 01 July 2017. We are engaged in the manufact ure of _____________ fal ling under Customs Tar iff Code _______ of the Customs Tar iff Act, 1975 read with Cen tral Goods and Se rvi ces Tax Act, 2017 (‘GST Act’ ).
2.
I/We claim refund of Rs. ______________________ (Rupees_____________) f rom
the Account Current (or ‘PLA’ ) maintained by us under our erstwhile Central Excise Registration, on the grounds mentioned hereunder:-
Transition provision for Migration of PLA (a) That, we have bee n engaged in man ufacturing and cle arance of ________ since the date we had taken Central Excise Registration. Under the
10
`Personal Ledger Account – Refunds post GST compliance of the Act, we were required to file monthly returns in Form ER1 for reporting our Central Excise Liability and how the said Liability was paid by us.
(b) That, Act specified two modes of pay ment of Central Excise Liability either by way of Debit in the Cenvat Credit Account or by way of Debit in the Account Current.
(c) That, b ecause of insuf ficie ncy of o ur balan ces in our Cenvat Credit Accoun t we were required to deposit tax by way of Account Current. Further as per our
business
practice,
appropriate
amount
of
balance
was
always
maintained under the Account Current.
(d) That, while filing the ER 1 r eturn for the perio d June 2017, it was di scovere d by us that Central Excise Liability for the month falls short of the balance in the Account Current i.e. the Account ended with a positive balance of Rs. __________ post filing of final return before GST.
(e)
That, GST Act doesn’ t contain any specific provision for transition of closing balance in the Account Current as on 30/06/2017. However, one of th e FAQ published by the CBIC (earlier known as CBEC) on Mining Sector specifically permits the refund option for the balance of Account Current. For the sake of brevity, the said FAQ No. 43 is reproduced below; 43. What will happen to the balance available in the current account (PLA) under Central excise, deposited in cash in advance by any assesse? Answer: Balance in PLA will not be under transition to GST since that has not been appropriated to the Government account which will be determined post completion of the pending assessment. The same can be claimed as refund under the Central Excise Law.
(f)
It is amply clear from the above, that the Migration route for Account Current is Refund Route, and refund should be permitted without any resistance.
11
`Personal Ledger Account – Refunds post GST
We are otherwise eligible for the Refund (g) That, for the sake of curbing un -ne cessary quali ficat ions and re servations over the eligibility of PLA Refund claim is substantiated through the succeeding paragraphs;
(h) That, Jurisprudence o ver PL A refund i n not res integra and has been settled in catena of judgments over the years by the respective Courts. We rely upon following judgments;
In Jay Shree Tea & Industries Ltd. vs CCE, Kolkata 2005(08)LCX0069 , the Hon’ble CESTAT had held that the PLA is in the nature of a deposit with the government and money belongs to the assessee, therefore he can claim back his money There is a distinction between the amount appropriate towards duty and amount deposited for payment of a duty. In a former case duty which has only been levied and paid evidently becomes the property of the Government and no person would be entitled to get it back unless there is a provision of law to enable that person to get the duty already appropriated back from the state or the Government. In the latter case, however, when an amount has been deposited to be appropriated thereafter towards duty which may fall due there having no appropriation, the property in money does not pass to the Government unless the goods are cleared and the duty is levied. In present case the money deposited in PLA cannot be utilised due to withdrawal of Central Excise duty on Package Tea and Tea including Tea waste. The money belongs to the appellant over which the Department has no claim. The appeal deserves to be allowed. I therefore allow the appeal with consequential benefit to the Appellant.
In Bijlalimoni Tea Estate vs CCE 2007(01)LCX0270, the Hon’ble CESTAT held that Section 11B of the Act is inapplicable qua PLA Refunds and relied upon Instruction vide F.No. 202/24/72-CX.6 dt. 6.1.78 issued by CBIC to hold that the refund is eligible;
12
`Personal Ledger Account – Refunds post GST 3. Ld. DR for the Revenue submitted that if any refund of duty is claimed under Central Excise Act, 1944, due process of law as required under Section 11B of Central Excise Act, 1944, should be followed and the authorities have rightly rejected claim for the appellant. Meeting to such point, the ld. Counsel has submitted that the Central Board of Excise & Customs has already issued instruction vide F.No. 202/24/72-CX.6 dt. 6.1.78, in consultation with the Ministry of Law to the effect that un-utilised amount in PLA is refundable to the appellants and relying on this instruction, the appellant submitted that this Bench has already decided such matter in the case of Jay Shree Tea & Industries Ltd. Vs. Commissioner of Central Excise, Kolkata reported in 2005 (071) RLT 0367 (CESTAT- Kol.). 4. On the basis of the above decision, the appellants cannot be denied of justice and cannot be un-equally treated under law. It is judicial discipline that demands that unless that order of this forum is stayed by higher Courts or reversed by any such Court, order of this forum shall prevail and that should be followed unhesitatingly. I am inclined to agree to uphold majesty of law and follow judicial discipline and allow the appeal since the issue is no more res-integra.
In Welspun India Limited vs CCE 2009(08)LCX0027, the Hon’ble Tribunal relied upon the judgments of Jay Shree Tea & Industries supra and reiterated the position that an unspent amount in PLA is available for withdrawal by assessee. As held in the above referred judgments, the money is that of the assessee and can be claimed by him without attracting the provisions of refund claim. It is like an account book maintained in the banks and indicative of the fact as to how much money stands deposited by the assessee for utilization towards payment of duty in future. If duty is not required to be paid and the assessee is not able to utilize at for payment of duty, the amount lying unutilized is available for withdrawal by the assessee. In view of the above, impugned order is set aside and appeal is allowed with consequential relief to the appellants.
In, Navdeep Packaging Industries vs CCE, Ahemdabad 2006(12)LCX0128 the Hon’ble Tribunal has again affirmed that Section 11B has no application for the purpose of PLA Refund. The Tribunal further affirmed that Clause (b) of Proviso to Section 11B (2) which dis -qualifies test of Unjust Enrichment for PLA Refunds, is used only as a precaution and not as an ex ception to Section 11B (1) per se ;
13
`Personal Ledger Account – Refunds post GST 2. The issue involved is whether the refund of unspent PLA balance is covered under Section 11B of the Central Excise Act, 1944. The Ld. Commissioner (Appeals) in his order has considered the provisions of Rule 9(1A) read with Rule 173G(1A) of the Central Excise Rules, 1944 which provides fur withdrawal of amount from PLA by the Commissioner and the said power of Commissioner has been delegated to Assistant/Deputy Commissioner of Central Excise. The contentions of the ld. Consultant for the appellant is that Section 11B of Central Excise Act, 1944 applies for refund of duty. This is not disputed by the Commissioner (Appeals). However, referring to clause (b) of the proviso to sub-section (2) of Section 11B, the Commissioner records that unjust enrichment shall not apply to refund of unspent PLA balance, but at the same time he also records that he does not mean that the unspent PLA balance is duty. He has recorded that the said provision has been incorporated as an abundant precaution to ensure that even by mistake, the provision of unjust enrichment is not applied for such refund. He also records that since there is a specific provision for refund of PLA balance under Rule 9(1A) and 173G(1A) of the said Rules, therefore, such refund would be squarely covered under the said Rules and not under Section 11B of the Central Excise Act. 1944. which applies only for refund of duty. He has, therefore, recorded that the provisions of Section 11BB of the Central Excise Act, 1944 granting interest for delayed refund of duty is not attracted in the present case.
3. After hearing, perusal of the records and relevant provisions as mentioned above, I do not find any legal infirmity in the Order passed by the Commissioner (Appeals) so far as the applicability of Rule 9(1A) and Rule 173G(1A) of the Central Excise Rules, 1944, is concerned. The appeal filed by the appellant is, therefore, dismissed.
The Hon’ble Supreme Court in Samrat International (P) Ltd. vs CCE
1990(09)LCX0085 , has clearly laid down relevant date for an uncrystalized liabili ty, shall be the date on which duty is actually debited via returns and not the date of deposit by Challan. Therefore even if ass ume d, but not acc epted that Secti on 1 1B is app licab le for the PLA refund, the time bar of one year shall not be taken as date of deposit into PLA.
14
`Personal Ledger Account – Refunds post GST (i)
From the foregoing paragraphs, it is abundantly clear that, We are eligible for the refund claim, therefore it is most respectfully prayed that the refund be credited to us.
2. I/We enclose the following documents in support of the claim. (a)
Latest Copy of PLA Register i.e. 30/06/2017
(b)
Copy of erstwhile Central Excise Registration (Form RC)
(c)
Copy of GST Registration (Form REG-06)
(d)
Copy of relied upon Judgments
3. The amount claimed was originally paid by Treasury Challan No. _______ dated _______ deposited into _______ Treasury under the Head of Account III Union Excise duties/Duty on _______ miscellaneous receipts/by adjustment in Account Current No. _________ dated _________.
5. The payment of refund may please be made in my/our favour by a crossed cheque on _________ Treasury/by money order at Government cost.
6. I/We declare that no refund on this account has been claimed/received by me/us earlier.
7. I/We declare that the duty for which refund has been claimed has not been charged/realised from any other person and a copy of the price-list, relevant Gate Pass (Central Excise) like documents and invoices are enclosed.
8. I/We undertake to refund on demand being made within six months of the date of payment of any rebate erroneously paid to me/us.
15
`Personal Ledger Account – Refunds post GST
Dated_______
Signature
and full address of claimant
Received payment
Revenue Stamp (For amounts exceeding Rs. 20.00) _________________________________ Signature of claimant
Claim of Shri/Messrs _________________ has been scrutinised and found correct.
Refund of Rs. _____ (Rupees _____________) is sanctioned.
Certified that no refund order regarding the sum now in question has previously been passed.
Head of Account Supdt./A.C. of C. Ex. ______
(SANCTIONING AUTHORITY)
Rs. ____ credited towards consumer welfare fund established under Section 12C of the Central Excises and Salt Act, 1944.
16
`Personal Ledger Account – Refunds post GST Cheque No. ___________.dated ______ for Rs. ________ (Rupees______________) issued on ______ (RBI/SBI/Treasury) in settlement of this claim.
A.C. of Central Excise. (For use in the C.A.O.'s office)
Post audited certified that (i) the amount concerning which the refund is given has been credited into the Treasury/ (ii) order of refund has been verified with
(a) DD1/DD2/AR1/AR5/AR6/AR7/AR8/AR9/AR10/T.C. No. _______dated _______ Gate Pass No. ______.
OR (b) Debit entry in account current No. _______ dated ______ and (ii) Refund has been noted against the original credit under my signature.
17
`Personal Ledger Account – Refunds post GST
FORM NO. EA-1 BEFORE THE HON'BLE COMMISSIONER (APPEALS),
E XCISE APPEAL NO.
/2018
M/S. _________________
1.
No.
2.
Name and Appellant
............ APPELLANT
of 2018 the
____________
3.
Designation and address of the officer passing the decision or order appealed against and the date of the decision or order.
____________
4.
Date of communication of the decision or order appealed against to the Appellant.
____________
5.
Address to which the notices may be sent to the Appellant.
____________
(i)
Description and classification of goods
____________
(ii)
Period of dispute
June 2017 to Jul 2017
(iii)
Amount of duty, if any, demanded for the period mentioned in item (ii)
Not Applicable
(iv)
Amount of refund, claimed for the mentioned in item (ii)
(v)
Amount of fine imposed
address
of
5A.
if
any, period
____________
Not Applicable
18
`Personal Ledger Account – Refunds post GST (vi)
Amount of penalty imposed.
Not Applicable
(vii)
Market value of seized goods
Not Applicable
6.
Whether duty and penalty or both is deposited. If not, whether any application for dispensing with such deposit has been made. (A copy of the Challan under which the deposit is made shall be furnished).
Not Applicable
6A.
Whether the Appellant wishes to be heard in person
Yes.
7.
Reliefs claimed in the appeal
As per prayers made in the appeal
19
`Personal Ledger Account – Refunds post GST STATEMENT OF FACTS 1. M/s _________ (Name) _________, _________ (Address) _________ (hereinafter referred to as the ‘the Appellant’ ) are filing the present appeal against the Order-in-Original No. __________________ dated ____________ (hereinafter referred to as ‘the impugned Order’ or ‘the OIO’ ) passed by the Ld. Assistant Commissioner, _________ (Jurisdiction) _________ (hereinafter referred to as ‘the Adjudicating Authority’ ). Copy of OIO is attached as Annexure-A.
2. The Adjudicat ing Aut hority has rejected the Refund Claim am ounting to Rs. _______________
filed
by
the
Appella nt
vide
Ref und
Application
dat ed
____________ (hereinafter referred to as ‘the Application’) . Copy of Refund Application is attached as Annexure-B.
Facts of the Case: 3.
The Appel lan t are reg istered w ith the Cen tral/ S tat e Goo ds and Service Tax Department vide GSTN No. ________________ and were registered under the Central
Excise
Act,
1944
( ‘ Excise
Act’ )
vide
Registration
No.
___________________, having bee n migrated into the Goods and Service Tax with effect from 01 July 2017.
4.
The Appellant ar e en gaged in t he manufacture o f _____________ falling un der Customs Tariff Code _______ of the Customs Tariff Act, 1975 read with Central Goods and Services Tax Act, 2017 ( ‘GST Act’ ).
5.
That, the Appellant had been regularly man ufacturing and cle ari ng their product under the Central Excise Registration. Under the compliance of the Excise Act, the Appellant were required to file month ly returns in Form ER-
1 for reporting their Central Excise Liability and how the said Liability was paid by them.
20
`Personal Ledger Account – Refunds post GST 6.
That, the Excise Act specified two modes of pay ment of Central Excise Liability either by way of Debit in the Cenvat Credit Account or by way of Debit in the Account Current (or ‘PLA’ ).
7.
That, because of insuf ficie ncy of bal ances in their Cenvat Cre dit Acc ount the Appellant were required to deposit tax by way of Account Current. Further as per the business practice, appropriate amount of balance was always maintained under the Account Current.
8.
That, while filing the ER 1 return for the period Jun 2017, it was di scove red by the Appellant that Central Excise Liability for the month falls short of the balance in the Account Current i.e. the Account ended with a positive balance of Rs. __________ post filing of final return before GST.
9.
That, as per the relevant pro visions as prevale nt during the Central Excise Regime and clarification post enactment of GST Act by the CBIC (earlier CBEC)
the
Appellant
had
preferred
refund
claim
of
Rs.
__________
(Rupees_____________) from the Account Current maintained by them under their erstwhile Central Excise Registration vide the Application.
10. Unfortunately, however, being unsatisfied with the eligibility of the refund claim, the Adjudicating Authority has rejected the claim vide OIO No. _________ dated ___________.
11. Hence this Appeal.
21
`Personal Ledger Account – Refunds post GST GROUNDS OF APPEAL 12. At the outset, the Appellant submits that the OIO passed by Adjudicating Authority is erroneous both on facts and in law and hence is liable to be set aside.
13 . That the grounds of app eal set out herein are indepen dent and without prejudice to one another.
A.
PROVISIONS OF SECTION 11B OF EXCISE ACT ARE NOT APPLICABLE FOR PLA REFUND
B.
LIMITATION PERIOD UNDER PRESCRIBED UNDER EXPLANATION TO SECTION 11B HAS TO BE SEEN FROM DATE OF CRYSTALIZATION OF DUTY
C.
THE PLA REFUND CLAIM IS ELIGIBLE ON MERITS
D.
JUDGMENT OF VELSON POLYSTER IS UNREASONED, AGAINST THE SETTLED JURISPRUDENCE HENCE INAPPLICABLE TO THE FACTS
22
`Personal Ledger Account – Refunds post GST A.
PROVISIONS OF SECTION 11B OF EXCISE ACT ARE NOT APPLICABLE FOR PLA REFUND
A.1. That, the Adjudic ating Authority vide Para 4.4 of the OIO has held that provisions of Section 11B are attracted in case of PLA Refund since the Tre asu ry Challan was mad e under the Head – ‘Basic Excise Duty’; 4.6. ……….They therefore submit t h at the provisions of Section 11B of the Central Excise Act, 1944 are not attracted in the instant case. N this regard I f ind that the claimant have shown that the amounts were credited in the PLA were based on deposit made through TR-6 Challans where the head of deposit was clearly shown as ‘Basic Excise Duty’ (Accounting Code No. 00380003). Therefore the provisions of Section 11B are clearly attracted
A.2. That, it is most respectfull y submit ted that the finding o f the Adjudic ating Authority wholly erroneous and unformulated. The Accounting Code No. 00380003 with the Heading ‘Basic Excise Duty’ of Treasury Challan, on which the Adjudicating Authority has relied upon is merely a deposit
account of the Government . Depositing an amount in any Accounting Code doesn’t crystalize the amount as any duty.
A.3. That, it has bee n wel l settled that a Treasury Chall an is merel y a mode of deposit of payment and not a discharge of any tax or duty. The Hon’ble Ahmedabad CESTAT in case Gujarat Engineering Works vs CCEx,
Ahmedabad 2013(04)LCX0019 has abundantly made it clear that a deposit by Challan is a deposit and not duty. 7. The first appellate authority in the impugned order has come to a conclusion that the amount of Rs. 1,00,00 0/which has been deposited by the appellant is a duty worked out by the Central Excise Off icers. I find from the records that the amount which has been deposited by the TR-6 challan dated 2-8-2005 was a round figure of R s. 1,00,000/- which cannot be considered as a duty but has to be considered as a deposit as the subsequent sho w cause notice which was issued to the assessee, as hereinabove recorded, is for an amount of Rs. 41,81 ,875/-
23
`Personal Ledger Account – Refunds post GST . Hence in my view, an amount of Rs. 1,00,000/- dep osited by the appellant even under panchanama cannot be considered as a duty deposited worked out by the Central Excise Officers. In my view, the said amount can be at the most an amount deposited by the appellant to pursue his legal rights to the s ho w caus e notice and being heard by the higher judicial fora on the issue. I find that both the lower authorities ha ve misdirected their findings by applying provisions of Section 11B of the Central Excise Act, 1944 and more so by applying definition of relevant date given in the explanation. I find that in the case in hand, the amount which has been sought as a refund by the appellant is not a duty which become refundable as a consequence of judgment but an amount which has been deposited by the appellant as a pre-deposit during the course of investigation.
A.4. That, since t he amount deposited vide Tre asu ry Challan is not a duty, t he provisions of Section 11B are not invited. The Appellant also relies upon the judgement Bijlalimoni Tea Estate vs CCE 2007(01)LCX0270, wherein the Hon’ble Tribunal has clearly held that provisions of Section 11B ibid are not applicable for claiming PLA Refund 3. Ld. DR for the Revenue submitted that if any refund of duty is claimed under Central Excise Act, 1944, due process of law as required under Section 11B of Central Excise Act, 1944, should be followed and the authorities have rightly rejected claim for the appellant. Meeting to such point, the ld. Counsel has submitted that the Central Board of Excise & Customs has already issued instruction vide F.No. 202/24/72-CX.6 dt. 6.1.78, in consultation with the Ministry of Law to the effect that un-utilised amount in PLA is refundable to the appellants and relying on this instruction, the appellant submitted that this Bench has already decided such matter in the case of Jay Shree Tea & Industries Ltd. Vs. Commissioner of Central Excise, Kolkata reported in 2005 (071) RLT 0367 (CESTAT- Kol.). 4. On the basis of the above decision, the appellants cannot be denied of justice and cannot be un-equally treated under law. It is judicial discipline that demands that unless that order of this forum is stayed by higher Courts or reversed by any such Court, order of this forum shall prevail and that should be followed unhesitatingly. I am inclined to agree to uphold majesty of law and follow judicial discipline and allow the appeal since the issue is no more res-integra.
24
`Personal Ledger Account – Refunds post GST
A.5. The Appellant als o relies upon following judgments to suppo rt their contention
Commissioner of Central Excise, Mumbai II vs Allied Photographic India Ltd. 2004(03)LCX0109
Commissioner of Central Excise, Chennai-II vs Ucal Fuel Systems Ltd. 2011(09)LCX0377
ITEL
Industries
Ltd.
vs
Commissioner
of
Central
Excise,
Calicut
2014(01)LCX0008
Commissioner of Central Excise (Appeals), Bangalore vs Kvr Construction 2010(11)LCX0194
Navdeep Packaging Industries vs CCE, Ahemdabad 2006(12)LCX0128 Welspun India Limited vs CCE 2009(08)LCX0027 Jay Shree Tea & Industrie s Ltd. vs CCE, Kolkata 2 005(08)LCX0 069
A.6. That, the observa tion of the Adjudic ating Authority also runs contrar y to the Chapter 3 Part V (Manner of payment of duty and Current Account) of the CBEC Manual of Supplementary Instructions. In the said, it has been loudly worded that treasury deposits are used for crediting the PLA while duty is only what is debited from the PLA. Relevant paragraphs are highlighted below;
1.3 The duty can be discharged by debiting an account current (also referred to as Personal Ledger Account {PLA]) -and debiting the CENVAT Credit Account maintained by the assessee under the provisions of CENVAT Credit Rules, 2002. 1.5 In account current [Personal Ledger Account], credit is taken by depositing money in the banks on T.R.6 Challans. The guidelines regarding account current are mentioned in subsequent paragraphs.
A.7. That, the observat ion of the Adj udic ating Authority also runs count er to the provisions of Section 3 of the Excise Act. As per Section 3, the duty of excise is leviable only on the manufacture of goods and not the deposit
25
`Personal Ledger Account – Refunds post GST of as such made in the PLA. If the argument of the Adjudicating Authority is accepted, then every deposit in the PLA would result in a levy which is not there in the Section 3 and result in tax without levy, violating the Article 265 of the Constitution of India.
A.8.
In light of the foregoing provisions, the observation of the Adjudicating Authority that Section 11B is applicable to the PLA refunds is against the law and against the facts and hence required to be struck down.
B.
LIMITATION PERIOD UNDER PRESCRIBED UNDER EXPLANATION TO SECTION 11B HAS TO BE SEEN FROM DATE OF CRYSTALIZATION OF DUTY
B.1. That, vide Para 4.5, the Adjudicat ing Authority has observed that Tim e Bar of Section 11B is 1 year and since the Appellant had made deposit vide TR 6 Challan dated 15/03/2014 i.e. more than 3 years have passed when the refund claim has been filed on 09/11/2017. Therefore, the Refund claim is not eligible on the sole basis of time bar. 4.5 From the above I find that the claimant has fil ed refund claim after more than 3 years from the date of actual payment. The claim should have been filed within the time limit prescribed under Section 11B of the Central Excise Act, 1944, which is whithin one year f rom the date of payment. Thus I find that the claim is hit by limitation of time factor B.2. That notwithstanding abo ve, if it is ass umed but not accepted that provisions of Section 11B are applied, then also the Adjudicating Authority has committed a serious error in applying the provisions of time limitation.
B.3. That as per Se ction 11B (1) time li mitation of one year has to be cou nted from the ‘relevant date’ which in turn is defined under the Explanation clause (B) as follows;
(B) "relevant date" means, -
26
`Personal Ledger Account – Refunds post GST (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisa ble materials used in the manufacture of such goods, (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Off ice concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purpos es af ores aid ; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a f ac to r y af te r hav ing be en remo v ed f ro m such f ac to ry f or export out of India, the date of entry into the fac tory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if aft er the manufacturer has made the payment on the basis of s uch rate for any period but before the expiry of that p eriod such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufac turer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the d ate of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty.
27
`Personal Ledger Account – Refunds post GST
B.4. That, a close scr utiny of the abo ve clauses mak es it app are ntly clear that none of the clauses seems to be cover the refund claim of PLA. Even the residuary clause (f) is inapplicable since the deposit vide Treasury Challan is not a payment of duty, as evidently clear from Paragraph A above.
Therefore the very observation of the Adjudicating Authority has no locus standi.
B.5.
In Samrat International (P) Ltd. vs CCE 1990(09)LCX0085 , the Hon’ble Supreme Court clearly laid down relevant date for an un-crystalized
duty, shall be the date on which duty is actually debited via returns and not the date of deposit by Challan.
Similar judgments follows in Collector of Central Excise vs Delhi Cloth Mills 1993(09)LCX0051, Assam Industrial Corporation vs Collector of Central Excise 1983(10)LCX0060.
B.6.
From the preceding paragraphs it is vehemently clear that d ate for refund claim under PLA should not be seen as the date of deposit of Challan. Instead the relevant date limb is not applicable per se while gauging the refund claims under PLA.
B.7.
In light of the foregoing provisions, the rejection of the Application based on time limitation is liable to be struck aside and refund claim should be allowed.
C.
THE PLA REFUND CLAIM IS ELIGIBLE ON MERITS
C.1. That, while rejec ting the Ref und Appli cat ion, the Adjud icating Authority has violated the law of the land and acted in gross negligence of binding precedents.
28
`Personal Ledger Account – Refunds post GST
C.2.
Post implementation of GST, the Central Government had incorporated various provisions in the GST Act for transitioning of closing stocks and closing Credits. Although GST Act doesn’t contain any specific provision for transition of closing balance in the PLA as on 30/06/2017. However, such refunds was addressed by one of the FAQ published by the CBIC on Mining Sector which specifically permitted the refund for the balance of Account Current. For the sake of brevity, the said FAQ No. 43 is reproduced below; 43. What will happen to the balance available in the current account (PLA) under Central excise, deposited in cash in advance by any assesse? Answer: Balance in PLA will not be under transition to GST since that has not been appropriated to the Government account which will be determined post completion of the pending assessment. The same can be claimed as refund under the Central Excise Law.
C.3. That furthermo re, t he iss ue of PLA refund is no longer res integra and has been settled by the Hon’ble Courts in favour of the assessee in multiple judgments.
C.4.
In Jay Shree Tea & Industries Ltd. vs CCE, Kolkata 2005(08)LC X0069 , the Hon’ble CESTAT had held that the PLA is in the nature of a deposit with the government and money belongs to the assessee, therefore he can claim back his money There is a distinction between the amount appropriate towards duty and amount deposited for payment of a duty. In a former case duty which has only been levied and paid evidently becomes the property of the Government and no person would be entitled to get it back unless there is a provision of law to enable that person to get the duty already appropriated back from the state or the Government. In the latter case, however, when an amount has been deposited to be appropriated thereafter towards duty which may fall due there having no appropriation, the property in money does not pass to the Government unless the goods are cleared and the duty is levied.
In present case the money deposited in PLA cannot be utilised due to withdrawal of Central Excise duty on Package Tea and
29
`Personal Ledger Account – Refunds post GST Tea including Tea waste. The money belongs to the appellant over which the Department has no claim. The appeal deserves to be allowed. I therefore allow the appeal with consequential benefit to the Appellant.
C.5.
In Bijlalimoni Tea Estate vs CCE 2007(01)LCX0270, the Hon’ble CESTAT held that Section 11B of the Act is inapplicable qua PLA Refunds and relied upon Instruction vide F.No. 202/24/72-CX.6 dt. 6.1.78 issued by CBIC to hold that the refund is eligible; 3. Ld. DR for the Revenue submitted that if any refund of duty is claimed under Central Excise Act, 1944, due process of law as required under Section 11B of Central Excise Act, 1944, should be followed and the authorities have rightly rejected claim for the appellant. Meeting to such point, the ld. Counsel has submitted that the Central Board of Excise & Customs has already issued instruction vide F.No. 202/24/72-CX.6 dt. 6.1.78, in consultation with the Ministry of Law to the effect that un-utilised amount in PLA is refundable to the appellants and relying on this instruction, the appellant submitted that this Bench has already decided such matter in the case of Jay Shree Tea & Industries Ltd. Vs. Commissioner of Central Excise, Kolkata reported in 2005 (071) RLT 0367 (CESTAT- Kol.). 4. On the basis of the above decision, the appellants cannot be denied of justice and cannot be un-equally treated under law. It is judicial discipline that demands that unless that order of this forum is stayed by higher Courts or reversed by any such Court, order of this forum shall prevail and that should be followed unhesitatingly. I am inclined to agree to uphold majesty of law and follow judicial discipline and allow the appeal since the issue is no more res-integra.
C.6.
In Welspun India Limited vs CCE 2009(08)LCX0027, the Hon’ble Tri bunal relied upo n the judgmen ts of Jay Shree Tea & Industries supra and reiterated the position that an unspent amount in PLA is available for withdrawal by assessee. As held in the above referred judgments, the money is that of the assessee and can be claimed by him without attracting the provisions of refund claim. It is like an account book maintained in the banks and indicative of the fact as to how much money stands deposited by the assessee for utilization towards payment of duty in future. If duty is not required to be paid and the assessee is not able to utilize at for payment of duty, the amount lying unutilized is available for withdrawal by the assessee. In view of the above, impugned order is
30
`Personal Ledger Account – Refunds post GST set aside and appeal is allowed with consequential relief to the appellants.
C.7.
Navdeep Packaging Industries vs CCE, Ahemdabad In, 2006(12)LCX0128 the Hon’ble Tribunal has again affirmed that Section 11B has no application for the purpose of PLA Refund. The Tribunal further affirmed that Clause (b) of Proviso to Section 11B (2) which disqualifies test of Unjust Enrichment for PLA Refunds, is used only as a precaution and not as an exception to Section 11B (1) per se ; 2. The issue involved is whether the refund of unspent PLA balance is covered under Section 11B of the Central Excise Act, 1944. The Ld. Commissioner (Appeals) in his order has considered the provisions of Rule 9(1A) read with Rule 173G(1A) of the Central Excise Rules, 1944 which provides fur withdrawal of amount from PLA by the Commissioner and the said power of Commissioner has been delegated to Assistant/Deputy Commissioner of Central Excise. The contentions of the ld. Consultant for the appellant is that Section 11B of Central Excise Act, 1944 applies for refund of duty. This is not disputed by the Commissioner (Appeals). However, referring to clause (b) of the proviso to sub-section (2) of Section 11B, the Commissioner records that unjust enrichment shall not apply to refund of unspent PLA balance, but at the same time he also records that he does not mean that the unspent PLA balance is duty. He has recorded that the said provision has been incorporated as an abundant precaution to ensure that even by mistake, the provision of unjust enrichment is not applied for such refund. He also records that since there is a specific provision for refund of PLA balance under Rule 9(1A) and 173G(1A) of the said Rules, therefore, such refund would be squarely covered under the said Rules and not under Section 11B of the Central Excise Act. 1944. which applies only for refund of duty. He has, therefore, recorded that the provisions of Section 11BB of the Central Excise Act, 1944 granting interest for delayed refund of duty is not attracted in the present case. 3. After hearing, perusal of the records and relevant provisions as mentioned above, I do not find any legal infirmity in the Order passed by the Commissioner (Appeals) so far as the applicability of Rule 9(1A) and Rule 173G(1A) of the Central Excise Rules, 1944, is concerned. The appeal filed by the appellant is, therefore, dismissed.
C.8. That, the above judgments and stand point of governmen t post GST, unarguably tilts towards the eligibility of Refund of PLA balance.
31
`Personal Ledger Account – Refunds post GST C.9. That, despite PLA Refunds having san ctity of law , the Adjudic ating Authority has fervently opted to over- ride them. Therefore the OIO is liable to be struck down and refund claim be allowed.
D.
JUDGMENT OF VELSON POLYSTER IS UNREASONED, AGAINST THE SETTLED JURISPRUDENCE HENCE INAPPLICABLE TO THE FACTS
D.1. That the Adjudic ating Authority has opted for pick and choose appro ach while adjudicating the refund claim. Ignoring the judgments quoted in foregoing paragraphs, the Adjudicating Authority has solely relied upon the judgment of Hon’ble CESTAT Single Member Bench in case of Valson
Polyster
Ltd.
vs
Commissioner
of
Central
Excise,
Daman
2011(04)LCX0259
D.2. That, in the Valson Polyster L td jud gme nt preside d b y t he Sin gle Member, the CESTAT has denied PLA Refun d on the similar grounds as pro pounded by the Adjudicating Authority in OIO.
D.3.
It is most respectfully submitted that, the judgment of Valson Polyster Ltd. is per incuriam and runs contrary to the settled law by the Hon’ble Supreme Court in case of In Samrat International (P) Ltd. supra , wherein the Apex Court had clearly laid down relevant date for an un-crystalized
duty, shall be the date on which duty is actually debited via returns and not the date of deposit by Challan.
D.4. That, moreove r, the judgment of Valson Polyste r Ltd. is a sing le membe r bench judgment while Welspun India Limited supra judgmen t fro m the same Ahmedabad bench of CESTAT is a Division bench judgment. As per the law of bench size precedence the decision of Division Bench shall prevail over the Single Member Bench decision, as held in Down Town
Travels Pvt. Limited 2011(07)LCX0024.
32
`Personal Ledger Account – Refunds post GST D.5. That, from the bod y o f t he judgmen t i t i s clear that none of the j udgme nts quoted above were brought to the notice of the Bench, therefore in absence of a reasoned order, the Valson Polyster judgment is not a precedent to be followed.
D.6. That, disregard ing the fav ourab le judgments from the sup erior courts quoted above and relying upon the judgment of an inferior Court shows the biased approach of the Adjudicating Authority.
D.7. The refore the observation of the Adjudicating Authority is liabl e to be struck down on this ground alone, and refund claim be allowed.
33
`Personal Ledger Account – Refunds post GST PRAYER 4.
In
view
of
the
above,
it
is
respectfully
prayed
that
the
Hon’ble
Commissioner (Appeals), Central Excise may be pleased to: -
(a)
Set aside the impugned Order-in-Original No. _______ dated _________, passed by the Ld. Assistant Commissioner and allow the appeal in full, with consequential relief;
(b)
Allow the Refund claim dated filed by the Appellant
(c)
Grant a personal hearing;
(d) Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case.
APPELLANT
34
