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2023 (5) TMI 515 - AT - Central ExciseRefund claim - requirement of inclusion in the assessable value, the VAT amounts paid by the assessee using VAT, 37B Challans - amount deposited under protest or not - mark of protest in the cenvat credit account - rejection on the ground of time limitation - time limit prescribed under section 11B of Central Excise Act, 1944 - HELD THAT - The appeal before the Tribunal was allowed in 2018 (4) TMI 1787 - CESTAT NEW DELHI , in favour of the appellants relying on the earlier decision of the Tribunal in the case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR 2018 (1) TMI 915 - CESTAT NEW DELHI , which was based on the decision in the case of Wellspun 2017 (5) TMI 177 - CESTAT MUMBAI , which concluded that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT, 37B Challans - Thus, the impugned orders were set aside and the appeal was allowed. Time Limitation - HELD THAT - Section 11B (1) prescribes the period of one year from the relevant date and the term relevant date‟ is then defined under the Explanation as given above and the relevant clause (ec) specifically provides that in case the amount is refundable as a consequence of a judgement or order of an appellate Tribunal or any Court, it is the date of such judgement, decree, order or direction - In the present case, the amount became due by virtue of the decision of the Tribunal in 2018 (4) TMI 1787 - CESTAT NEW DELHI whereby the impugned order including the subsidy amount in the transaction value was set aside and the appeal was allowed with consequential relief, which obviously implied that the amount so deposited by the appellant has to be refunded and therefore if the period of one year is computed from the said date, the application for refund dated 09.01.2019 was within the limitation period of one year. On this count itself the refund claim ought to have been allowed. Whether the amount deposited by the appellant was under protest ? - HELD THAT - Having considered, the Supplementary Instructions, Chapter 13 of CBECs Excise Manual, which provides the procedure to be followed, it is found that it seems to be substantially complied with as the Cenvat account do mentions that, central excise duty debited against the amount received as State VAT subsidy under protest . The same cannot be ignored and the appellant is entitle to the benefit of the proviso to section 11B of the Central Excise Act, 1944, which specifically says that period of limitation of one year shall not apply where duty and interest is paid under protest. Appeal allowed.
Issues Involved:
1. Whether the refund application was time-barred. 2. Whether the amount was deposited "under protest". 3. Whether the refund claim was valid despite the absence of a formal protest letter. Summary: 1. Time-barred Refund Application: The appellant, engaged in the manufacture of Decorative Laminate/Sheet, filed a refund claim for Rs. 12,60,492/- on 09.01.2019 under section 11B of the Central Excise Act, 1944. The department issued a show cause notice on 13.02.2019, asserting that the refund claim was time-barred as per section 11B. Both the adjudicating authority and the Commissioner of (Appeals) confirmed the show cause notice, holding that the case did not fall under the category of payment "under protest". The Tribunal, however, found that the authorities below did not consider the case law on the subject properly. The Tribunal noted that the appellant's refund application was within the limitation period of one year from the date of the Tribunal's order on 27.04.2018, as per clause (ec) of Explanation B to section 11B. 2. Amount Deposited "Under Protest": The appellant argued that the amount was deposited under protest, as evidenced by the Excise Return (ER-I) for various periods and the Cenvat Credit Register. The authorities below rejected this claim, stating that the RG-23 register was a printout of an excel sheet and that manually filed Excise Returns were not acceptable post-2011. The Tribunal found that the appellant substantially complied with the Supplementary Instructions, Chapter 13 of CBEC's Excise Manual, and was entitled to the benefit of the proviso to section 11B of the Central Excise Act, 1944, which states that the limitation period of one year shall not apply where duty and interest are paid under protest. 3. Validity of Refund Claim without Formal Protest Letter: The Tribunal referred to the decision in India Cements Ltd., Vs. CCEX - 1989 (41) ELT 358, where the Apex Court held that a letter given by the assessee could be taken as a protest. The Tribunal applied this ratio to the present case, concluding that the appellant's actions indicated that they were not accepting the liability without protest. The Tribunal disagreed with the findings that the appellant should have submitted a letter of protest or filed a refund claim within the statutory period of one year from the date of payment. Conclusion: The Tribunal set aside the impugned orders and allowed the appeal, directing the respondents to process the refund applications and make the refund in accordance with the law as expeditiously as possible. The order was pronounced on 9th May 2023.
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