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2023 (10) TMI 50 - AT - Central ExciseRefund claim - payment under protest or not - duty amount paid by the appellant through reversal of cenvat credit and thereafter disputing/contesting the same on grounds of limitation - refund claim is time barred as it is filed after one year from the order or not - adjustment of the penalty amount from the sanctioned refund amount - HELD THAT - The appellant avers that the time limit does not apply in their case as the payment of the duty amount through reversal of Cenvat Credit was disputed/ contested from the show-cause stage, hence it was paid under protest, and therefore the time limit under Section 11B does not apply. It is found that the appellant on being pointed out by the audit has agreed and paid the duty amount. Thereafter, after the issue of the show-cause notice they have contested the demand on the ground of limitation, the same cannot be considered as payment under protest. Time Limitation - HELD THAT - The appellant has filed the refund claim after one year after the Hon ble CESTAT in CYIENT DLM PVT. LTD. VERSUS COMMISSIONER OF CENTRAL TAX, MYSURU COMMISSIONERATE 2019 (3) TMI 176 - CESTAT BANGALORE , the relevant date for filing the refund in such cases is as per Section 11B(5) Explanation (B) (ec) of Central Excise Act, 1944, which mentions that the relevant date for filing the refund is the date of order of the Appellate Tribunal, however in this case the refund claim has been filed after one year of the Tribunal s order, hence it was held to be time-barred. Adjustment of the proportionate penalty imposed and adjusted by the adjudicating authority - HELD THAT - The Commissioner (Appeals) has held that the Hon ble Tribunal s has not passed any order as regards the penalty on the ineligible cenvat credit availed by the appellant. The appellant submits that the Hon ble Tribunal has followed the decision in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE 2011 (4) TMI 969 - KARNATAKA HIGH COURT of the Hon ble High Court of Karnataka and interest only has been set aside, hence the Hon ble Tribunal has not passed any order as regards the penalty. It is found that proportionate penalty amount is payable as there was wrong availment of Cenvat credit. Therefore the imposition and adjustment of the penalty amount from the sanctioned refund amount is maintainable. The appeal is not maintainable and hence the same is dismissed.
Issues involved:
The issues involved in the judgment are: 1. Whether the duty amount paid by the appellant through reversal of cenvat credit and subsequently disputed on grounds of limitation can be considered as payment under protest? 2. Whether the Commissioner (Appeals) was correct in affirming that the refund claim was time-barred as it was filed after one year from the Hon'ble CESTAT's Final Order? 3. Whether the adjustment of penalty amount from the sanctioned refund by the adjudicating authority is legally valid? Summary of Judgment: Issue 1: The appellant contended that the duty amount paid by reversing cenvat credit and later disputing it on limitation grounds should be considered as payment under protest. However, the Tribunal found that the appellant had agreed and paid the duty amount upon audit findings before contesting it, hence it did not qualify as payment under protest. Issue 2: Regarding the refund claim, the appellant filed it after one year from the Hon'ble CESTAT's Final Order, which was deemed time-barred as per Section 11B(5) Explanation (B) (ec) of the Central Excise Act, 1944. The Tribunal upheld the rejection of the refund claim on this ground. Issue 3: The adjudicating authority had adjusted a portion of the penalty from the sanctioned refund amount. The Commissioner (Appeals) noted that the Tribunal had not specifically addressed the penalty issue. As there was wrongful availment of Cenvat credit, the imposition and adjustment of penalty from the refund amount were deemed valid. In conclusion, the Tribunal dismissed the appeal, stating that the issues raised were not maintainable based on the discussions provided. (Order pronounced in Open Court on 18/08/2023)
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