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2021 (6) TMI 952 - AT - Central ExciseRefund of Excise Duty - Duty was paid during investigation is amount to paid under protest or not - excess stock - S.S. Ingots - rebuttal of presumption - proof of delivery of notice - HELD THAT - The impugned order has been passed on the presumption by the Commissioner (Appeals) that the order-in-appeal dated 28.05.2012 was served on the appellant, on the basis of evidence of despatch and the contention of the Department that such despatch was not returned back by the Post Office. It is found that the learned Commissioner have erred in making the presumption in absence of proof of delivery produced by the Department. During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through registered post or speed post to the person for whom it was entitled or his authorised agent with acknowledgement due or proof of delivery. Thus it was incumbent upon the Revenue to produce evidence of delivery or service which is the mandate as per Section 37C(1)(a) of the Act. In absence of proof of delivery, order dated 28.05.2012 cannot be deemed as served on the appellant, as has been held by the Hon ble Rajasthan High Court in the case of M/S RP CASTING PVT LTD VERSUS THE CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANR 2016 (6) TMI 996 - RAJASTHAN HIGH COURT . The amount in question was collected by the Department without issue of show cause notice at the investigation stage, and further the appellant have contested the show cause notice, as well as, has been constantly in appeal pursuant to adjudication, and thus the amount in question is held to be deposited under protest ipso facto - Hon ble Madras High Court in the case of CCE, Coimbatore vs. Pricol Ltd. 2015 (3) TMI 735 - MADRAS HIGH COURT has held that any amount deposited by pre-deposit or during the course of investigation, is definitely in the nature of deposit under protest . It is directed that the Adjudicating Authority to grant interest @ 12% per annum from the date of deposit till the date of refund - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Validity of the presumption of service of the order-in-appeal. 2. Determination of whether the duty was paid under protest. 3. Applicability of the limitation period for filing a refund claim. 4. Entitlement to interest on the refund amount. Issue-wise Detailed Analysis: 1. Validity of the Presumption of Service of the Order-in-Appeal: The appellant contested the presumption of service of the order-in-appeal dated 28.05.2012, arguing that there was no proof of delivery as required under Section 37C(1)(a) of the Central Excise Act. The Tribunal found that the Commissioner (Appeals) erred in presuming service based solely on evidence of dispatch without proof of delivery. The Tribunal referenced several rulings, including those from the Rajasthan High Court and the Supreme Court, which emphasized the necessity of proof of delivery for the commencement of the limitation period. Consequently, the Tribunal held that the order dated 28.05.2012 could not be deemed served on the appellant without such proof, making the refund claim timely. 2. Determination of Whether the Duty Was Paid Under Protest: The appellant argued that the duty was paid under protest, which should exempt them from the one-year limitation period for refund claims. The Tribunal noted that the duty was collected during the investigation stage without a show cause notice and that the appellant had consistently contested the demand in subsequent proceedings. The Tribunal also highlighted that the Assistant Commissioner had accepted the payment under protest in the refund order. The Tribunal concluded that the duty was indeed paid under protest, referencing rulings from the Madras High Court and other judicial precedents that supported this view. 3. Applicability of the Limitation Period for Filing a Refund Claim: Given that the duty was paid under protest, the Tribunal held that the one-year limitation period under Section 11B(1) of the Central Excise Act did not apply. The Tribunal emphasized that the payment under protest exempted the appellant from the limitation period, allowing the refund claim to be considered timely. The Tribunal also noted that the retraction of statements by the Director of M/s B.B. Steels Pvt. Limited further supported the appellant's case. 4. Entitlement to Interest on the Refund Amount: The appellant claimed entitlement to interest on the refund amount from the date of deposit until the date of refund. The Tribunal agreed, directing the Adjudicating Authority to grant interest at 12% per annum, referencing the Division Bench ruling in Parle Agro (P) Ltd. and the Supreme Court's decision in Sandvik Asia Ltd. The Tribunal mandated that the interest be paid within two months from the date of receipt or service of the order. Conclusion: The Tribunal set aside the impugned order, allowed the appeal, and directed the Adjudicating Authority to grant the refund with applicable interest at 12% per annum. The Tribunal emphasized the necessity of proof of delivery for the commencement of the limitation period and recognized the duty payment under protest, exempting the appellant from the one-year limitation period for refund claims.
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