2017 (1) TMI 1024 - AT - Central Excise

Refund claim - time bar - rejection on the ground that the appellant had not followed the procedure of payment of duty provided under Rule 233B of the Central Excise Rules, 1944, the letter dated 02.08.2000 is not the sufficient compliance of procedure under Rule 233B for payment of duty under protest, regarding RG 23A Part-II it was contented that in the register which is a carbon copy duty paid under protest was made by ball point pen. It is clear that mention under protest made later on - reliance placed in the case of M/s. HINDUSTAN PETROLEUM CORPORATION LTD Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II 2014 (5) TMI 767 - CESTAT MUMBAI . Held that - the assessee in such case has not complied the provision of Rule 233B, whereas in the present case the appellant has admittedly submitted a letter dated 02.08.2000 showing the reversal of MODVAT credit under protest. Therefore the ratio of the judgment of Hindustan Petroleum Corporation Ltd. it is not applicable in the present case. The total refund claim of ₹ 39,14,616/- pertaining to the period August, 1999 to February, 2002. The letter of protest first time was submitted by the appellant on 02.08.2000 therefore reversal made on or after 02.08.2000 till February, 2002 is covered made under protest. Whereas the reversal for the period August, 99 to 01.08.2002 cannot be treated under protest, therefore the reversal for the period August 1999 to 01.08.2000 is clearly time barred as no protest was lodged by the appellant. The reversal made from 02.08.2002 to February, 2002 is under protest and cannot be rejected on time bar, therefore the refund to the extent of reversal for the period 02.08.2000 to 2002, is allowed. Refund partly allowed, matter on remand for correct quantification - appeal disposed off.

Summary

Issues Involved:
Refund claim time-barred due to non-compliance with Rule 233B for payment of duty under protest.

Detailed Analysis:

1. Refund Claim Time-Barred:
The issue in this case revolved around a refund claim filed by the appellant, which was rejected on the grounds of being time-barred due to non-compliance with the procedure of payment of duty under protest as per Rule 233B of the Central Excise Rules, 1944. The appellant had reversed CENVAT credit under protest through a letter dated 02.08.2000 for the period from August 1999 to February 2002. The authorities contended that the letter did not meet the requirements of Rule 233B and that the mention of "under protest" in the RG 23A Part-II register was added later with a ballpoint pen, indicating manipulation. The refund claim was initially rejected and upheld by the Commissioner (Appeals), leading to the appellant's appeal before the tribunal.

2. Arguments by Revenue:
The Assistant Commissioner representing the Revenue argued that the duty reversal by the appellant was not done under protest as the letter dated 02.08.2000 did not comply with Rule 233B. Additionally, a statement by a Distillery In-charge did not mention the payment being made under protest. The Revenue contended that the reversal of MODVAT credit sought for refund was not under protest and, therefore, was time-barred. It was highlighted that the letter dated 02.08.2000 did not cover the entire refund period, further supporting the time-barred argument.

3. Tribunal's Analysis and Decision:
Upon careful consideration, the tribunal found that the lower authorities had denied the refund claim solely on the basis of being time-barred. The tribunal observed that the letter dated 02.08.2000 clearly expressed the appellant's intention of reversal under protest, even though it was not submitted to the Assistant Commissioner. The tribunal emphasized that the mention of "under protest" in the RG 23A Part-II register did not negate the protest stated in the letter. Regarding the Distillery In-charge's statement, the tribunal noted that the letter sufficed as proof of protest, and there was no need for repeated mention in the statement. The tribunal distinguished a previous case cited by the Revenue, emphasizing that the appellant had indeed submitted a protest letter, unlike the case referred to. As a result, the tribunal allowed the refund for the period from 02.08.2000 to 2002, remanding the matter for correct quantification and reprocessing by the adjudicating authority.

In conclusion, the tribunal allowed the appeal by remanding the case for further processing based on the observations made, highlighting the importance of compliance with procedural requirements for payment of duty under protest to avoid time-barred refund claims.