SRI SARVARAYA SUGARS LTD. Vs. COMMISSIONER OF CENTRAL

JUDGEMENT

(1.) THIS appeal arises from the Order -in -Appeal No. 37/2006 (V -II) CE dated 31.01.2006 by which the refund claim which was adjudicated by the Tribunal by Final Order No. 50/2003 dated 17.01.2003 to an extent of Rs. 99,875/ - has been reduced and paid to an extent of Rs. 28,238/ -. The appellants contested the reduced amount of refund claim on the ground that the Revenue cannot reduce the refund claim as the same has been finally adjudicated by the Tribunal's Final Order No. 50/2003 dated 17.01.2003. The Tribunal had clearly held that there is no bar of unjust enrichment and the entire amount is required to be paid. Instead of making the payment along with interest, the Revenue took a stand that the amount is required to be recalculated as earlier the Adjudicating authority had not taken into consideration the excess Sales Tax actually paid in April 1995 which had been included in the assessable value and therefore refund arose due to payment of differential, duty. The Commissioner (Appeals) has also accepted the said findings. This has been challenged by the appellants. The learned Consultant submits that the Sales Tax is to be calculated straight away on the Sale Price of goods at the first point of sale, according to Section 4 of the Central Excise Act, Central Excise duty is to be paid on the assessable value which is based on wholesale ex -factory price less sales tax and excise duty. He submits that rental of Rs. 10/ - charged per crate does not form part of the price and has, therefore, to be excluded in the first place. It is the submission that the entire dispute in this regard is in the method of calculation of sales tax and excise duty. While sales tax is payable on the total price at the point of first sale (gate price), excise duty is to be calculated on such gate price minus sales tax. He has also submitted that the correct method of calculation of excise duty in this case as shown in the Annexure of the written submission now filed. It is the submission that the calculation arrived at by the Department is not correct while their calculation and the refund claim made by them is justified. He submits that the Tribunal has upheld the claim and directed the Department to refund the amount. Instead of making the payment, the Revenue has taken a stand to reopen the issue by adopting different method of calculation which is also not correct.

(2.) THE learned DR points out the Cross Objection filed by the Department. He submits that the Cross Objection should also be taken into consideration. He submits that the Cross Objection clearly laid down the method of calculation of sales tax and the assessee has not properly worked out the same. Hence the Tribunal's Final Order cited supra cannot be considered for refund of the amount.