2021 (3) TMI 768 - AT - Central Excise

Refund of CENVAT Credit - refund rejected by authorities below holding that the same is barred by limitation in terms of Section 11B of the Central Excise Act, 1944 - whether the reverse amount is to be treated as under protest or a deposit for entertaining the refund claim by not applying provision of Section 11B of the Central Excise Act, 1944? - HELD THAT - From the verification of records, it is found that during the course of audit an objection was raised to the appellant and on the basis of that objection they reversed the Cenvat credit but no protest has been lodged by the appellant and they have also not asked for issuance of any show cause notice from the department. As audit team raised the objection, the appellant reversed the said amount, the matter ends. Later on, after almost three years they filed refund claim saying that the said amount is to treated as deposit as they were not required to pay said amount. There is no judicial pronouncement on the issue whether they were required to reverse the Cenvat credit or not and they have not made any protest that they are not required to reverse the amount. There are no infirmity in the impugned order holding that refund claim is barred by limitation - appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the reverse amount is to be treated as under protest or a deposit for entertaining the refund claim by not applying provision of Section 11B of the Central Excise Act, 1944.

Analysis:
The appellant appealed against the rejection of their refund claim as time-barred. The audit team had pointed out that the appellant was not entitled to Cenvat credit on outdoor catering services, leading the appellant to reverse the Cenvat credit amount. The appellant argued that the amount was paid under protest and no show cause notice was issued. The appellant contended that the refund claim should be entertained without the application of Section 11B. The appellant relied on certain cases to support their argument. The Revenue argued that the reversal was done without protest and the refund claim was filed almost three years later, making Section 11B applicable. The Revenue cited a specific case to support their stance.

The Tribunal considered the submissions and examined the records. It was observed that the appellant reversed the amount without protest upon objection by the audit team. The appellant did not request a show cause notice. The Tribunal noted that the appellant filed the refund claim three years later, claiming the amount was a deposit. However, there was no judicial pronouncement on whether the reversal was necessary, and the appellant did not protest the reversal. Therefore, the Tribunal held that Section 11B applied, and the cited cases by the appellant were deemed inapplicable to the present case. Consequently, the Tribunal found no issue with the rejection of the refund claim as time-barred and upheld the impugned order, dismissing the appeal.

In conclusion, the Tribunal ruled that the refund claim rejection was justified due to being time-barred under Section 11B, as the appellant did not protest the reversal of the amount and filed the claim three years later. The decision emphasized the lack of protest by the appellant and the absence of a request for a show cause notice, leading to the application of Section 11B. The Tribunal's analysis highlighted the importance of timely actions and adherence to procedural requirements in such cases.