2010 (3) TMI 406 - AT - Central Excise

Refund- Limitation- The appellant are a Central Govt. Public Sector Undertaking engaged in the manufacture of heavy and sophisticated electrical & mechanical equipment for generation and transmission of power chargeable to duty under Chapter 84 and 85 of the Central Excise Tariff. Duty paid on invoices but same not issued to customers. Subsequently amount collected from customers under different set of invoices on which also duty paid. Held that- while finalizing assessment, issue of double payment not considered, appellant right to submit claim again. Refund filed subsequently within one year of finalization is within time. Commissioner s finding of refund being time barred not correct.

Summary

Issues:
Double payment of duty on the same price escalation amount; Refund claim time-barred; Failure to consider refund claim during provisional assessment finalization.

Analysis:
The appellant, a Central Govt. PSU, received an order from NVDA for equipment supply with a price variation clause. After realizing double payment of duty on price escalation, they filed a refund claim in 2002, returned as premature. The Asst. Commissioner advised submitting the claim post finalization of provisional assessments. The claim was refiled in 2005, rejected by the Asst. Commissioner and Commissioner (Appeals) as time-barred under Section 11B of the Act. The appellant contended that the claim was within the limitation period of one year from finalization of assessments in 2004. The Commissioner (Appeals) upheld the rejection citing time limitations.

During the hearing, the appellant argued that the refund claim was timely, as per the Asst. Commissioner's advice, and the subsequent rejection was incorrect. The Department defended the rejection, emphasizing the time-barred nature of the claim and lack of prior plea regarding double duty payment during provisional assessments. The Tribunal examined the case, noting the undisputed double duty payment on the same price escalation amount. The Asst. Commissioner's guidance to submit the claim post-assessment finalization was deemed appropriate, considering the provisional nature of assessments. The Tribunal found the claim timely, filed within one year of assessment finalization, contrary to the Commissioner (Appeals)'s view.

The Tribunal concluded that the rejection of the refund claim as time-barred was unfounded. As the assessments were provisional and the issue of double duty payment was not addressed during finalization, the appellant's right to resubmit the claim was upheld. The Tribunal deemed the insistence on intimation of invoice cancellations and proof of NVDA's lack of Cenvat credit irrelevant due to the duty payment evidence. Consequently, the impugned order was deemed unsustainable, and the appeal was allowed with consequential relief.

This detailed analysis addresses the issues of double duty payment, timeliness of the refund claim, and failure to consider the claim during provisional assessment finalization, providing a comprehensive overview of the legal judgment.