2009 (3) TMI 748 - AT - Central Excise

Summary

Issues:
1. Whether the refund claim filed by the appellants is time-barred or not.

Analysis:
The judgment revolves around the issue of whether the refund claim filed by the appellants, who are manufacturers of M.S. Drums/Barrels, is time-barred or not. The appellants claimed that they were visited by the Division Preventive team of the Central Excise on 15-12-1998, who demanded payment of differential duty on certain drums cleared during July 1998 to December 1998. The appellants paid the duty under protest and lodged a protest in the PLA, mentioning the same in their monthly RT12 return for December 1998. The lower authorities did not dispute these contentions. The Tribunal noted that the duty was not paid voluntarily but under pressure from the Department, as evidenced by a fax sent on 21-12-1998, stating the grounds of protest. The Commissioner (Appeals) incorrectly observed that the fax lacked date and time, which was not the case. The Tribunal found the protest to be genuine and held that the appellants had complied with the procedural requirements of payment under protest, overcoming the limitation under Section 11B of the Central Excise Act, 1944.

The Tribunal emphasized that the procedure under 233B of the Central Excise Rules, 1944, is directory and not mandatory. Considering the circumstances of the case, the Tribunal concluded that the appellants had substantially met the procedural requirements for payment under protest, which was deemed sufficient to overcome the limitation period specified in Section 11B of the Central Excise Act, 1944. Therefore, the Tribunal held that the protest lodged by the appellants was valid, and the refund claim was not time-barred. Consequently, the case was remitted back to the original adjudicating authority to examine the admissibility of the refund claim on merits, including the aspect of unjust enrichment, and to pass appropriate orders in accordance with the law after hearing the appellants.

In the final decision, the Tribunal set aside the impugned order passed by the Commissioner (Appeals) and allowed the appeal filed by the appellants by way of remand. The judgment was pronounced in court on 4-3-2009.