2010 (1) TMI 602 - AT - Central Excise

Refund Limitation - Section 11B of Central Excise Act, 1944, prescribes a limitation period for filing refund claim - duty paid by assesssee becoming refundable, the relevant date for counting the limitation period be the date of payment of duty - neither the duty payment was under protest, nor under provisional assessment under Rule 9B of CER, 1944, the relevant date , the date of payment of duty - refund claim rejected as time barred Appeal dismissed

Summary

Issues Involved:

1. Validity of the addendum dated 10-3-2000 to the show cause notice dated 22-2-2000 proposing the rejection of the refund claim.
2. Whether the refund claim is time-barred.

Issue-Wise Detailed Analysis:

1. Validity of the Addendum to Show Cause Notice:

The initial show cause notice dated 22-2-2000 proposed the rejection of the refund claim on the grounds that the original duty-paying documents were not enclosed and the Range Superintendent Uran Division Panvel had not certified that the "BOP test unit" and "BOP Accumulator unit" are the same. An addendum dated 10-3-2000 was issued adding the ground of time bar for rejection of the refund claim. The Tribunal found nothing objectionable in issuing this addendum as it was issued before the adjudication of the matter and was based on existing facts. The Tribunal noted that even if the amended show cause notice is treated as a fresh show cause notice, there is no question of time bar since it pertains to the rejection of a refund claim.

2. Whether the Refund Claim is Time-Barred:

The Assistant Commissioner rejected the refund claim on the ground of time bar, noting that the duty was paid on 9-4-99, and the refund claim was filed on 10-2-2000, beyond the six-month limitation period from the relevant date. The Appellant argued that the relevant date should be 16-11-99, the date when the Range Superintendent Uran clarified that the 'BOP Accumulator Unit' is the same as 'BOP Test Unit'. However, the Tribunal upheld the rejection of the refund claim as time-barred based on the following points:

- Provisions of Section 11B: The relevant date for counting the limitation period is the date of payment of duty unless the duty was paid under protest or the assessment was provisional. The Tribunal noted that the duty was not paid under protest, nor was there a provisional assessment.
- Rule 233B Compliance: The Appellant did not follow the procedure prescribed under Rule 233B for paying duty under protest, nor did they request for provisional assessment under Rule 9B.
- Case Law References: The Tribunal referenced several judgments, including the Hon'ble Supreme Court's decision in CCE v. Rallis India Ltd. and Steel Authority of India Ltd. v. CCE, Coimbatore, which supported the view that the limitation period is counted from the date of payment of duty unless the duty was paid under protest or provisionally assessed.
- Equity Considerations: The Tribunal emphasized that equitable considerations are immaterial in construing provisions of limitation. The Appellant had alternative means to get over the limitation period but neglected to take recourse to such means.

Conclusion:

The Tribunal found no infirmity in the impugned order and dismissed the appeal, upholding the rejection of the refund claim as time-barred. The judgment emphasized strict adherence to statutory provisions and procedural requirements for claiming refunds under Central Excise law.