2009 (5) TMI 750 - AT - Central Excise

Summary

Issues:
1. Refund claim by the appellant for duty paid on polythene covers purchased in 1986.
2. Applicability of Section 11B for filing refund claims by purchasers of excisable goods.
3. Interpretation of payment under protest in relation to duty recovery and refund claims.
4. Time limit for filing refund claims by buyers before and after the amendment in 1991.

Analysis:
1. The appellant purchased polythene covers in 1986 from a manufacturer, leading to a dispute on exciseability. The duty demanded and penalty imposed were recovered from the manufacturer, adjusting it from their refund. The Tribunal granted a refund of penalty but not duty, stating the duty burden passed to the appellant. The appellant's refund claim in 1996 was rejected by the original authority and the Commissioner (Appeals) citing time limitations and the duty payment by the manufacturer, not the appellant.

2. The appellant argued that they protested the duty payment to the supplier, claiming they bore the duty burden and filed the refund claim within the time limit under Section 11B. The Department contended that there was no provision pre-1991 for purchasers to claim refunds, and even if Section 11B applied, the appellant missed the filing deadline. The Tribunal noted the absence of evidence showing the manufacturer paid duty under protest and emphasized the appellant's late entry into the dispute.

3. The Tribunal clarified that mere recovery from a refund due to the manufacturer does not constitute payment under protest by the appellant. It highlighted the settled dispute between the manufacturer and the Department, stating the appellant's involvement in 1996 did not indicate protest during the original transaction. The Tribunal underscored that protest to the supplier does not equate to protest to the Department, especially after the payment settlement between buyer and seller.

4. Regarding the time limit for refund claims, the Tribunal explained the stricter requirement pre-1991 for claims within six months of duty payment, contrasting it with the post-amendment provision of six months from the date of purchase. The Tribunal found that regardless of the time frame, the appellant failed to adhere to the prescribed deadlines, leading to the rejection of the refund claim by the Commissioner (Appeals) as legal and reasonable, ultimately upholding the decision and dismissing the appeal.