2010 (9) TMI 1008 - AT - Central Excise

Summary

Issues:
1. Refund claim of differential duty paid under protest.
2. Rejection of refund claim as time-barred under Section 11B of Central Excise Act, 1944.

Analysis:
1. The assessee filed a refund claim for differential duty paid under protest. The claim was for an amount of &8377; 1,72,053, paid on 23-10-2000. The Adjudicating Authority rejected a part of the claim as time-barred under Section 11B of the Central Excise Act, 1944. However, the ld. Commissioner (Appeals) set aside this rejection, stating that the claim was filed within the stipulated time. The Revenue appealed this decision, arguing that the differential duty was not paid by the assessee and, therefore, the refund was incorrect. The Tribunal found that the assessee had paid the duty under protest, and since there was no adjudication order confirming the duty as payable, the ld. Commissioner (Appeals) was correct in setting aside the rejection of the refund claim.

2. The Revenue contended that the practice of the assessee in paying net differential duty based on reconciliations was incorrect and amounted to a suo motu refund. However, the Tribunal noted that the Revenue did not dispute this practice during the show cause notice stage. As there was no adjudication on the correctness of this practice, the Tribunal held that the Revenue could not raise this issue belatedly. The Tribunal found both the impugned orders to be correct and legal, rejecting the appeals filed by the Revenue.

In conclusion, the Tribunal upheld the decision of the ld. Commissioner (Appeals) in allowing the refund claim of the assessee for the amount paid under protest, as there was no adjudication confirming the duty as payable. The Tribunal also noted that the Revenue could not dispute the assessee's practice of reconciling differential duty without any prior adjudication on its correctness. The appeals filed by the Revenue were rejected, and the orders were deemed correct and legally sustainable.