2012 (5) TMI 225 - AT - Central Excise

Refund - Period of limitation - annual capacity of production was finally determined by the Commissioner vide order passed in February 2001, which was accepted by the appellant and the duty assessment was also finalized in accordance with the said order. Once the assessments have been finalized, which was not challenged, the question of filing a refund claim thereafter will not sustain as per the apex Court s decision in the Flock India case ( 2000 (8) TMI 88 - SUPREME COURT OF INDIA - Central Excise) , refund claim is clearly time-barred as has been rightly held by the lower adjudicating and appellate authorities, appeal dismissed

Summary

Issues:
1. Claim for refund rejected as time-barred by the Commissioner of Central Excise (Appeals), Mumbai.
2. Appellant's claim for refund based on excess duty paid due to inclusion of galleries in determining the number of chambers.
3. Appeal against rejection of refund claim filed before the Appellate Tribunal CESTAT, Mumbai.
4. Interpretation of the law regarding determination of capacity of production and its impact on refund claims.

Analysis:

Issue 1: The appeal was directed against the order-in-appeal rejecting the appellant's claim for refund as time-barred. The Ld. Commissioner (Appeals) upheld the lower adjudicating authority's decision, which was based on the limitation of time.

Issue 2: The appellants opted for the compounded levy scheme for textile fabrics and paid duty under protest based on the provisional capacity fixation order. Subsequently, the annual production capacity was finally determined by the Commissioner of Central Excise. The appellant filed a refund claim based on the Hon'ble Supreme Court's judgment regarding the inclusion of galleries in determining the number of chambers.

Issue 3: The appellant's appeal before the Appellate Tribunal CESTAT challenged the rejection of the refund claim by the Commissioner (Appeals). The Counsel for the appellant argued that the refund claim should be allowed as the law regarding capacity determination was clarified by the Supreme Court only after the final order.

Issue 4: The Tribunal considered the rival submissions and noted that the final determination of the annual capacity of production was not challenged by the appellant, and assessments were finalized based on this determination. The Tribunal found that the refund claim was time-barred as per Section 11B of the Central Excise Act, 1944. The Tribunal distinguished the appellant's case from previous judgments cited by the appellant, emphasizing the importance of challenging assessments to support refund claims.

In conclusion, the Tribunal dismissed the appeal, affirming the lower authorities' decision that the refund claim was time-barred due to the failure to challenge the final determination of the annual capacity of production. The judgment highlighted the significance of challenging assessments to support refund claims and emphasized the limitations imposed by the law on such claims.