2015 (3) TMI 1388 - AT - Central Excise

Refund of excess duty paid - duty paid under protest - no show cause notice has been issued to the appellant - demands stayed by the stay order - HELD THAT - Admittedly, for the period in dispute for filing of refund claim where duty was paid under protest, no show cause notice has been issued to the appellant. Therefore, issue of valuation does not arise. Therefore, this Bench is having a jurisdiction to entertain the appeal filed by the appellant. Admittedly, for the subsequent period although demands have been confirmed by way of adjudication against the appellant and same has been stayed by the stay order mentioned. In these circumstances, when there is no amount pending against the appellant for recovery, appellant is entitled for the refund claim. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection based on valuation issue; Jurisdiction of the Bench to entertain refund claim.

Analysis:
The appellant appealed against the rejection of their refund claim, which was confirmed by the Assistant Commissioner. The duty was paid under protest in 1998, and no show cause notice was issued for the appropriation of the amount. The refund claim filed in 2013 was rejected on the grounds that show cause notices for subsequent periods were issued under Section 4(1A) of the Central Excise Act, 1944. The appellant argued that as no show cause notice was issued for the period in question, the issue of valuation does not arise. The jurisdiction of the Bench to entertain the appeal was challenged by the respondent, citing the valuation issue.

The Tribunal held that it had jurisdiction to entertain the appeal as the issue was whether the appellant was entitled to a refund claim for duty paid under protest without a show cause notice being issued. The appellant's counsel argued that since no show cause notice was issued for the period in question, they were entitled to the refund claim. They also highlighted that no dues were pending against the appellant due to a stay order granted by the Tribunal. The respondent contended that the issue involved valuation and that demands had been confirmed against the appellant, pending disposal before the Tribunal.

After considering the submissions, the Tribunal found that no amount was pending against the appellant for recovery, as the demands had been confirmed but stayed by a previous order. Therefore, the Tribunal ruled in favor of the appellant, setting aside the impugned order and allowing the appeal with consequential relief.