2016 (5) TMI 940 - AT - Central Excise

Refund claim - made by debit entry in their RG-23A Pt. I - Duty deposited under protest - Held that - the Revenue has nowhere given any details as to how the decisions relied upon by the Commissioner (Appeals), which involve the same legal issue, are not applicable to the facts of the case. As regards the Tribunal decision in the case of CCE, Aurangabad vs. BCL Forgings Ltd. 2005 (7) TMI 231 - CESTAT, MUMBAI , which stands relied upon by Commissioner (Appeals), it has been contended that the Department has not accepted the said decision and has filed an appeal before the Hon ble High Court of Mumbai. However, the Revenue has not been able to brought to our notice any decision of the Hon ble Mumbai High Court setting aside the said decision of the Tribunal. Similarly, in case of the Hon ble Gujarat High Court decision in the case of Shree Ram Food Industries vs. Union of India 2002 (9) TMI 646 - GUJARAT HIGH COURT , the Revenue has contended that the said decision is not applicable in as much as in the present case the respondents have voluntarily paid the duty. Apart from finding that the decisions relied upon by the Commissioner (Appeals) are fully applicable to the facts of the case, it is found that his observations and findings that the debit entry was countersigned by Superintendent (Preventive) and the show cause notice itself mentions that the debit was made on pursuance of the officers of the Central Excise Division, nowhere stands countered or rebutted by the Revenue. Commissioner (Appeals) order is upheld - Decided against the revenue

Summary

Issues: Appeal against denial of refund claim on grounds of time bar and protest payment.

Analysis:
1. Refund Claim and Time Bar: The respondent debited their Cenvat credit account following the Revenue's view on waste and scrap clearance, leading to a demand confirmed by the Adjudicating Authority. However, the Commissioner (Appeals) set aside the order. The Revenue's subsequent appeal to the Tribunal was rejected, entitling the respondent to a refund of ?14,39,577, filed within a month of the Tribunal's decision. The amount was later reduced to ?13,79,912 due to a recovery from a customer. The Revenue proposed to deny the refund on time bar grounds, but the respondent argued that the debit entry was made under protest, citing various Tribunal decisions that filing an appeal itself constitutes protest, hence the refund claim was timely filed.

2. Protest Payment: The Commissioner (Appeals) allowed the refund claim, referencing legal precedents where filing an appeal was considered a protest against the demand order. The Commissioner noted that the debit entry was counter-signed by the Superintendent (Preventive), indicating departmental coercion and lack of voluntariness in the payment. The Revenue appealed, claiming the decisions cited were not applicable, but failed to provide substantial evidence to counter the findings. The Tribunal upheld the Commissioner's decision, emphasizing the significance of the Superintendent's involvement in the debit entry as proof of coercion and protest payment, thus rejecting the Revenue's appeal.

In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the Commissioner (Appeals) decision to grant the refund, as the payment was deemed to be made under protest and not time-barred. The Tribunal highlighted the lack of merit in the Revenue's arguments and upheld the refund entitlement based on the circumstances surrounding the debit entry and the legal principles governing protest payments.