2009 (6) TMI 826 - AT - Central Excise

Issues Involved:
1. Denial of refund based on provisional assessment and protest letter.
2. Appealability of final order determining ACP and its impact on refund.
3. Treatment of protest letters under Rule 233B of Central Excise Rules 1944.
4. Availability of remedy for litigants under statutory provisions.
5. Granting post decisional hearing and principles of natural justice.

Issue 1: Denial of refund based on provisional assessment and protest letter:
The Appellant contested the denial of refund, arguing that the order was based on the denial of refund due to a provisionally determined ACP confirmed by the Commissioner. The Appellant had submitted a protest letter requesting a re-determination of production capacity and claimed the right to a refund. The Consultant for the Appellant argued that the refund should not have been denied without disposing of the protest letter, as the claim was categorically made in the protest letter itself.

Issue 2: Appealability of final order determining ACP and its impact on refund:
The Respondent contended that the Appellant had failed to challenge the final order determining the ACP before the Tribunal, leading to the loss of the remedy for appeal. Citing a decision by the Apex Court, the Respondent argued against the refund. The Appellant's Counsel countered, emphasizing the pending protest letter and the need for a decision by the Commissioner. The issue revolved around the availability of refund when the provisional assessment had reached finality and remained unchallenged.

Issue 3: Treatment of protest letters under Rule 233B of Central Excise Rules 1944:
The Tribunal examined Rule 233B, which provides for detailed representation when appeal or refund is not available against a protest letter. The Tribunal highlighted that the litigant should not be denied remedies available under the law. Referring to Section 11B of the Central Excise Act 1944, the Tribunal emphasized that the limitation period does not apply when duty is paid under protest. The Appellant's right to be heard against the final assessment of ACP was underscored.

Issue 4: Availability of remedy for litigants under statutory provisions:
The Tribunal held that the Appellant should not be left without a remedy, especially when a forum for redressal was provided by law. It emphasized the need for a post decisional hearing and cited relevant legal precedents to support the Appellant's case. The Tribunal directed the Commissioner to hear the matter concerning the final determination of ACP and the Appellant's protest letter, ensuring a fair opportunity for the Appellant.

Issue 5: Granting post decisional hearing and principles of natural justice:
The Tribunal stressed the importance of following principles of natural justice and ensuring that litigants are not deprived of a fair hearing. It directed the Authorities to re-consider the refund after the matter was disposed of by the Commissioner in accordance with the law, providing the Appellant with any consequential benefit entitled.

This comprehensive analysis of the judgment addresses the various issues involved and the Tribunal's reasoning behind its decision to set aside the impugned order and provide relief to the Appellant.

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