2005 (5) TMI 513 - AT - Central Excise

Summary

Issues: Refund claim rejection on the ground of limitation.

Analysis:
The Appellate Tribunal CESTAT, New Delhi heard an appeal filed by the Revenue against an Order-in-Appeal concerning a refund claim issue. The Adjudicating Authority initially rejected the refund claim on the basis of limitation. However, the Commissioner (Appeals) overturned this decision and allowed a refund of Rs. 4,15,387 to the respondents. The Tribunal noted that the respondents supplied goods to M/s. Bharat Sanchar Nigam Ltd., paying excise duty at 16%. When BSNL did not pay the full price of the goods due to a reduction in customs duty on imported raw material, the respondents filed a refund claim. The Tribunal observed that there was no evidence to suggest that the respondents had sought provisional assessment of their clearances, which is a prerequisite for claiming a refund. As the refund claim was filed after the lapse of one year from the date of payment without any provisional assessment or protest, the Adjudicating Authority's decision to reject the claim as time-barred was deemed correct. The Commissioner (Appeals) incorrectly assumed the payment of duty was provisional without any supporting documentation or agreement between the parties. As the respondents failed to follow the procedure for seeking provisional assessment, the Tribunal set aside the Commissioner's order and reinstated the Adjudicating Authority's decision, allowing the Revenue's appeal.