2010 (8) TMI 244 - AT - Central Excise

Refund Excess duty paid - Duty was paid on the erroneous assessable value arrived at after wrong totaling - contention of DR is that the self assessment is an assessment and without challenging refund claim is not maintainable Held that - Section 35 person who is aggrieved by any decision or order passed under this Act by a Central Excise Officer may appeal to Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order - neither any decision nor any order has been passed by the Central Excise officer which was communicated to the appellants - neither any decision nor any order of the Central Excise Officer is available order set aside - appeal is allowed

Summary

Issues: Appeal against denial of refund claim due to totalling mistake in duty payment leading to excess payment.

Analysis:
1. The appellant filed a refund claim due to a totalling mistake in duty payment, resulting in excess payment. The lower authorities denied the claim citing the need to challenge the assessment first, as per precedents like Priya Blue Industries Ltd. v. Commissioner of Customs and Commissioner of Central Excise, Kanpur v. Flock (India) Pvt. Ltd.

2. The appellant argued that no formal assessment took place as they self-discharged their duty liability correctly but made an arithmetical error in calculations. They contended that the refund claim was solely due to this error, not a challenge to an assessment order. Reference was made to Gimatex Industries Pvt. Ltd. v. Commissioner of Central Excise, Nagpur to support this argument.

3. The Departmental Representative (DR) countered, stating that the assessment based on the RT-12 return was accepted, making the refund claim invalid without challenging the assessment. The DR also highlighted the appellant's failure to inform the department of the error before filing the refund claim.

4. After examining the case, the judge found that the excess payment was due to a totalling mistake, not an incorrect assessment. The error was acknowledged by the appellant upon reconciliation of accounts, leading to the refund claim. The judge noted that the self-assessment did not require challenging as no formal decision or order was communicated by the Central Excise Officer, as per Section 35 of the Central Excise Act, 1944.

5. Section 35 specifies the process for appealing decisions or orders by Central Excise Officers, emphasizing the need for a formal decision communicated to the assessee before an appeal can be filed. The judge concluded that since no such decision or order existed in this case, the appeal was valid, and the precedents cited by the lower authorities were not applicable.

6. Therefore, the judge set aside the lower authority's decision, allowing the appeal with consequential relief. The judgment highlighted the importance of formal decisions or orders by Central Excise Officers for the validity of refund claims and appeals under the Central Excise Act, 1944.