2008 (2) TMI 185 - AT - Central Excise

Refund sought of amount deposited by appellant of irregular availment of credit by them - Appellants themselves have admitted the liability and have paid, the exact amount of duty and therefore there was no dispute in this regard and no SCN was issued and no adjudication order was passed - If the Appellants felt the refund was due to them they should have applied for the same within the time limit - no evidence produced before us that the said amount was paid under protest refund time barred

Summary

Issues:
Claim for refund rejected on the ground of time bar.

Analysis:
The Appellants claimed a refund for duty on goods received from dealers, which was rejected due to being time-barred. The Appellants had deposited the duty amount equal to the credit taken and later faced a penalty, which was set aside. The penalty proceedings were dropped, and the refund claim was rejected as it was filed after the statutory time limit. The Lower Authorities held that the Appellants admitted irregular availment of credit based on fraudulent documents from dealers without supplying corresponding input materials.

Analysis:
The Consultant argued that the deposited amounts were pre-deposits under Section 35F of the Central Excise Act, 1944, and cited a Gujarat High Court case. However, the Supreme Court overturned the High Court decision, making it no longer valid. The Tribunal found that the deposits were not pre-deposits under Section 35F as there was no dispute or adjudication order, and the Appellants admitted the liability without a Show Cause Notice.

Analysis:
The Consultant also cited a Tribunal decision for a refund in a different case, but the Tribunal noted that it was based on specific circumstances. Another case cited by the Consultant was dismissed as it involved a Show Cause Notice and a finding that the demand was not sustainable, unlike the Appellants' case where there was no dispute regarding the duty amount.

Analysis:
The Tribunal upheld the Lower Authorities' decision to dismiss the refund claim due to being time-barred, as the Appellants did not follow the legal provisions for claiming a refund within the prescribed time limit. Since there was no evidence of payment under protest, the Tribunal concluded that the orders were legal and proper, leading to the dismissal of the Appeal and disposal of the Cross Objection.