By TIOL News Service

MUMBAI, FEB 16, 2017: THE appellant had purchased a vehicle manufactured by M/s. Skoda Auto India Pvt. Ltd. Aurangabad through one M/s. Pashankar Automotive Pvt. Ltd., Wakad, Pune on 30.05.2010 which was said to have been initially cleared from factory premises of M/s. Skoda Auto India Pvt. Ltd. Aurangabad.

M/s. Skoda paid excise duty and issued excise invoice dated 30.04.2010 wherein duty payment particulars are mentioned. The appellant applied for the refund of excise duty amounting to Rs.1,97,635.00 claiming that he was entitled for exemption under Notification No. 6/2006-CE (which prescribes duty @4%).

Alongwith refund claim, appellant submitted medical certificate dated 10.06.2010 issued by B.J. Medical College of Sasoon General Hospital, Pune wherein in it was certified that appellant is 55% paralysis (PPRP. Pmt) and the certificate No. 12(13)/2010-AEI dated 22.10.2010 issued by the Director of Heavy Industries & Public Enterprises, New Delhi.

The refund claim was denied and which order was upheld by the Commissioner (A).

The reasons for rejection being -

(a) There is no evidence that car was cleared at normal rate of duty.

(b) The car was purchased by the appellant from the dealer.

(c) The excise duty burden was passed to the appellant.

(d) No objection certificate from the manufacturer, in case duty is refunded to the appellant.

Being aggrieved, the appellant is before the CESTAT.

After considering the submissions made, the Bench observed -

+ As per condition of the notification, only requirement is that the person who buys car should be physically handicapped person, from the medical certificate and also it is admitted fact that there is no dispute that appellant is physically handicapped person as he is 55% paralysis pmt.

+ The other condition is that the certificate should be issued by the Government of India, Department of Heavy Industries, the appellant have submitted this certificate which is not under dispute.

+ The condition of notification is buyer of the car is to give the affidavit that he shall not dispose of the car for five years from the date of purchase of the same. This affidavit also been submitted by the appellant and all these documents are not under dispute.

+ As regard the reason for rejection in the impugned order that whether duty was paid on the car and the same was borne by the appellant, has not been established, I observed that appellant have submitted the bill of M/s. Skoda where under the excise duty @ 22% was paid. Thereafter, for the same car the dealer M/s. Pashankar issued their invoice dated 8-5-2010.

+ With these facts, it is established that the car which was cleared by M/s. Skoda from the factory on the payment of duty @ 22% has been purchased by the appellant through dealer M/s. Pashankar, therefore, by any stretch of imagination there cannot be any doubt that duty paid vehicle cleared by the M/s. Skoda has been purchased by the appellant.

+ It is also observed that M/s. Skoda sold the motor vehicle at Rs.15,24,656.00 to M/s. Pashankar who in turn sold the same car to the appellant at Rs.18,57,265.00 which clearly shows that duty paid by M/s. Skoda was passed on to the appellant and the burden of duty was borne by the appellant.

+ As regard the requirement of no objection certificate from the vehicle manufacturer raised by the Commissioner (Appeals), I find that there is no such condition for production of such certification from the vehicle manufacturer, as per exemption notification No.6/2006-CE.

+ Moreover, once the excise duty paid by M/s. Skoda has been passed on to the appellant, M/s Skoda, under any circumstances, cannot claim refund and the same will not be admissible to M/s Skoda, therefore, asking for no objection certificate is absolutely unwarranted.

Conclusion:

The impugned order was set aside and the appeal was allowed with consequential relief.

The adjudicating authority was directed to sanction the refund to the appellant alongwith interest within a period of three months.

(See 2017-TIOL-465-CESTAT-MUM)