2005 (7) TMI 231 - AT - Central Excise

Summary

Issues involved:
The issue involves the refund of duty paid in pursuance of an order of the original authority before filing an appeal against it before the Commissioner (Appeals). The main contention is whether the refund application made after succeeding before CESTAT is time-barred or not.

Summary:

1. The Appellate Tribunal CESTAT, Mumbai heard a Revenue's appeal against the Commissioner of Central Excise (Appeals), Aurangabad's order. The Commissioner (Appeals) had upheld the Order-in-Original and rejected the department's appeal. The issue revolved around a refund claim of duty paid before filing an appeal. The respondent sought a refund of Rs. 58,313/- debited in the PLA Entry No. 1412, dated 29-10-1994, after succeeding before CESTAT in 1999.

2. The Assistant Commissioner sanctioned the refund, which led the department to appeal against this sanction to the Commissioner (Appeals). The Commissioner (Appeals) held that the refund was rightly sanctioned as the bar of limitation for filing a refund application does not apply in such situations. He emphasized that a deposit made under Section 35F is not a payment of duty but a pre-deposit for appeal rights, following the Tribunal's decision in a similar case.

3. The department contended that the refund application made on 11-1-1999 was beyond the six-month period and should be time-barred. However, the Tribunal observed that the refund claim arose from a CESTAT order, and the absence of a formal letter of protest did not affect the time limit. An appeal against an assessment order and demand itself constitutes a protest, making Rule 233B compliance unnecessary.

4. Rejecting the Revenue's argument citing Mafatlal Industries Ltd., the Tribunal emphasized that the bar of unjust enrichment applies even when duty is paid under protest, but a refund from an appellate order is not time-barred. The Tribunal upheld the Commissioner (Appeals)'s decision, stating that an appeal against a demand inherently serves as a protest, and dismissed the Revenue's appeal.

5. In conclusion, the Tribunal found no merit in the Revenue's appeal, upholding the Commissioner (Appeals)'s order and rejecting the appeal.