2013 (12) TMI 1086 - AT - Central Excise

Refund claim rejected on bar of limitation Held that - The claim of refund was made by the appellant within a period of around two months from the date of passing of the order-in-appeal - Following Surbhi Enterprise Vs. CCE, Ahmedabad 2006 (12) TMI 25 - CESTAT,AHMEDABAD and Nepa Ltd. Vs. CCE, Indore 2002 (10) TMI 150 - CEGAT, NEW DELHI filing an appeal against the order of confirmation of the demand amounts to protest and the consequential relief is liable to be granted to the assessee on the success of their appeal without raising the power of limitation. Relatability of debit to the demand Held that - Merely because the appellant has not mentioned against the said debit that the same is relatable to the demand in question will not ipso facto go to show that the same is not in respect of the confirmed demand - the debit was relatable to the demand and the appellant are entitled to the refund order set aside Decided in favour of Assessee

Summary

Issues:
1. Confirmation of demand, interest, and penalty by the Asstt. Commissioner
2. Appeal against the order of the Asstt. Commissioner
3. Claim for refund of debited amount
4. Rejection of refund claim by lower authorities
5. Time bar for claiming refund
6. Relatability of the debit to the confirmed demand

Analysis:

Issue 1:
The Asstt. Commissioner confirmed a demand of Rs.4,03,368/- along with interest and penalty. The original adjudicating authority set aside this order, leading to the appellant filing an appeal for consequential relief. The Tribunal directed the appellant to satisfy the original adjudicating authority for such relief. Subsequently, the Revenue appealed against the order of the Commissioner (Appeals).

Issue 2:
Following the above events, the appellant claimed a refund of Rs.1,32,009/- that was debited by them. The Department issued a show cause notice questioning this claim, citing time bar and lack of evidence linking the debit to the confirmed demand.

Issue 3:
Regarding the time bar, it was argued that the refund claim was made within two months of the order-in-appeal, not from the date of payment. Precedents were cited where the Tribunal held that filing an appeal against a demand confirmation constitutes a protest, entitling the appellant to consequential relief without limitation constraints.

Issue 4:
On the objection that the debit was not related to the confirmed demand, the Revenue failed to provide evidence supporting this claim. The absence of explicit mention linking the debit to the demand did not automatically disprove the connection. In the absence of evidence to the contrary, it was held that the debit was indeed related to the demand, warranting a refund for the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the appeal and granting consequential relief by setting aside the impugned order. The lack of evidence to disprove the relatability of the debit to the confirmed demand led to the decision in favor of the appellant for the refund claim.