2005 (11) TMI 405 - AT - Central Excise

Summary

Issues involved: Appeal against OIA regarding reversal of amount and refund claim period; Condonation of delay in refund application for cleared inputs under Rule 57F(4).

Issue 1 - Reversal of amount and refund claim period:
The Revenue appealed against OIA No. CEX.Xl/JMJ/106/916/NSK/APPEAL/2003, contending that the assessee debited an amount of Rs. 4,77,917/- on 30-9-97 and claimed a refund on 6-7-98, which was after the statutory period of six months. The Commissioner (Appeals) noted that the reversal was done under protest on the insistence of officers, citing the CEGAT Order in the case of M/s. Premium Soaps & Detergents v. CCE. The Revenue argued that the reversal cannot be considered as under protest and the refund claim was filed late, thus supporting the OIA. However, the Counsel referred to the Madras High Court judgment in CCE Chennai v. ITC Ltd., emphasizing that payments made 'under protest' need not be narrowly interpreted. He also cited precedents like Steel Products Ltd. v. CCE, Kolkata and Scientific Sales v. CCE, Indore to support the contention that the reversal done under officer's insistence should be considered 'under protest'. The Counsel further relied on the judgment in Crompton Greaves Ltd. v. CCE, where Modvat credit was allowed even with delayed invoices, similar to the present case. Ultimately, the Commissioner's order was upheld based on the Tribunal ruling in M/s. Premium Soaps and Detergents.

Issue 2 - Condonation of delay in refund application for cleared inputs under Rule 57F(4):
The assessee cleared inputs for processing under Rule 57F(4) but did not receive them back fully within the stipulated period. They paid duty of Rs. 4,71,197 on 30-9-97 as directed by Central Excise Officers, but the goods were received back later, prompting a refund application. The question arose whether the Commissioner could condone the delay when inputs were received after 60 days. The Commissioner noted that the proviso of Rule 57 was amended to 180 days, making it a condonable offense. He observed that the amount deposited was refundable, especially since it was done under protest on the officers' insistence. Citing the Supreme Court's decision in Mafatlal Industries Ltd. v. UOI, which stated that duty deposits during investigation are considered under protest, the Commissioner's order was deemed legal and proper, leading to the rejection of the appeal.