2011 (3) TMI 650 - HC - Central Excise

Refund - Duty paid under protest - Notification No. 22/2003 - capital goods were removed to their EHTP premises under the CT-3 certificate issued by the Department - The Original Authority rejected the refund claim on the ground that Notification No. 22/2003 cannot be availed in respect of the imported goods and that CT-3 procedure can be adopted only for goods, which are directly received from the factory - Hence, the Tribunal held that Notification No. 22/2003 is applicable as the goods have been removed only after considerable use and as such, they were entitled for refund of the duly paid under protest - Accordingly, the Tribunal has ordered for refund of the duty paid under protest - Decided in favour of assessee.

Summary

Issues:
Challenge to Tribunal's order on applicability of Notification No. 22/2003 for refund of duty paid under protest.

Detailed Analysis:
The case involves an appeal by the revenue challenging a Tribunal order that allowed an assessee to claim a refund of duty paid under protest based on Notification No. 22/2003. The assessee, a company, imported machinery cleared for use in a DTA unit, paid duty, and took Cenvat credit. The goods were removed under the CT-3 procedure, but the Department demanded duty payment, which the assessee paid under protest. The original authority rejected the refund application, leading to an appeal to the Tribunal. The Tribunal held that Notification No. 22/2003 applied as the goods were removed after considerable use, entitling the assessee to the refund. The revenue contended that the assessee, not being the manufacturer of the capital goods, did not meet the notification conditions. However, the Tribunal's order for refund was supported by the respondent's counsel, stating the assessee was entitled to the refund as per the notification's conditions.

The revenue argued that the assessee did not meet the conditions of the notification and was not entitled to the refund. On the other hand, the respondent's counsel supported the Tribunal's decision, asserting that the assessee fulfilled the notification's conditions and should receive the refund. The Tribunal's order was deemed justified, leading to the dismissal of the revenue's appeal. The Court found no infirmity in the Tribunal's decision and upheld the order for refund of duty paid under protest. The substantial questions of law framed in the appeal were answered in favor of the assessee and against the revenue, concluding the case in favor of the assessee.