2012 (7) TMI 200 - AT - Central Excise

Period of limitation - rejection of refund claim of Education and Senior Higher Education cess paid on paper and paper board - period April,2004 to February,2009 - claim filed on 30.03.2010 - Held that - Since appellants could not produce any evidence that they have challenged the payment of Cess at any time and first time they have approached the department vide their letter dated 18.03.2009 and the letter of Superintendent claimed to be order is no order on leviability of Cess and otherwise and the appellants have undisputedly filed refund claim only on 30.03.2010 which is after almost six years after the payment of Cess and which is well beyond the period prescribed u/s 11B. Rejection of refund claim upheld - Decided against assessee.

Summary

Issues:
1. Time limit for filing refund claim under Section 11B of Central Excise Act, 1944.
2. Applicability of Education Cess on paper and paper board.
3. Precedence of Tribunal decisions in similar cases.
4. Rejection of refund claim on grounds of time bar and unjust enrichment.

Analysis:
1. The appellant filed a refund claim for Education Cess paid on paper and paper board from April 2004 to February 2009. The lower adjudicating authority rejected the claim as time-barred under Section 11B of the Central Excise Act, 1944. The appellant argued that their claim, filed on 30.03.2010, was within the one-year limit prescribed under section 11AB. The appellant also cited a Tribunal decision stating that Cess on paper is not includible in Education Cess calculations. However, the appellant was not a party to this decision.

2. The Commissioner(Appeals) upheld the lower authority's decision, citing the appellant's lack of involvement in the Tribunal decision regarding Cess on paper. The Commissioner also considered the issue of levyability of Cess on paper Cess, relying on previous Tribunal decisions. The Commissioner found that the Tribunal's judgment in the case of Andhra Pradesh Paper Mills Ltd. takes precedence over other decisions, concluding that Cess on paper Cess is not leviable. The first appeal was allowed based on this finding.

3. Regarding the rejection of the refund claim, the Assistant Commissioner rejected the claim on grounds of time bar and unjust enrichment. The appellant failed to prove that the claim was filed within the prescribed time limit or address the issue of unjust enrichment. The second appeal was rejected, upholding the Assistant Commissioner's decision. The appellant challenged only the rejection of the refund claim, not the demand of duty or penalty, limiting the scope of the appeal.

4. The Tribunal dismissed the appeal, noting the lack of evidence that the appellant challenged the payment of Cess in a timely manner. The appellant's refund claim, filed six years after the payment of Cess, was deemed untimely under Section 11B. As a result, the Tribunal upheld the rejection of the refund claim, concluding that the appeal lacked merit.

This judgment highlights the importance of timely filing refund claims under the Central Excise Act, the significance of being a party to relevant Tribunal decisions, and the impact of precedence in Tribunal judgments on similar cases.