1990 (1) TMI 254 - AT - Central Excise

Summary

Issues:
1. Claim for refund of duty barred by limitation under Section 11B of the Central Excises & Salt Act, 1944.
2. Evidence of payment of duty under protest and its acceptance as valid evidence.

Analysis:
The judgment by the Appellate Tribunal CEGAT, CALCUTTA involved a Reference Application arising from an earlier order dated 17th August, 1989, related to Appeal No. E-127/88. The applicants, SAIL, were respondents in the original appeal. The issue stemmed from a Notice by the Assistant Collector of Central Excise & Customs questioning a refund claim of Rs. 90,794.96 submitted by SAIL in 1984, which was rejected due to being lodged after a significant delay from the original payment date in 1980. The Assistant Collector rejected the claim, but the learned Collector (Appeals) later allowed the appeals. However, the Tribunal deemed the claim barred based on legal precedents like the case of Collector of Central Excise, Chandigarh v. Doaba Cooperative Sugar Mills and Miles India Ltd., Baroda v. Appellate Collector of Customs, Bombay.

The learned Consultant for the applicants argued that a point of law arose from the Tribunal's order, specifically questioning whether the claim should be treated under Section 11B of the Central Excises & Salt Act, 1944, thus subject to the limitations under that section. Additionally, the issue of whether evidence of payment under Sl. No. 47 dated 18-5-1980 in the P.L.A. could be accepted as evidence of payment under protest was raised. On the other hand, the SDR contended that no legal issue arose from the Tribunal's order, suggesting that a reference was unnecessary.

After hearing both sides, the Tribunal concluded that a point of law did arise from the order, citing a similar case where the High Court of Calcutta had directed a reference on a similar issue of limitation on a refund claim. Drawing parallels, the Tribunal decided to refer the matter to the Hon'ble High Court of Calcutta for a considered opinion. The specific question posed for the High Court's opinion was whether the Tribunal was justified in holding that the claim for refund made by the assessee was barred by limitation. Consequently, the Reference Application was disposed of accordingly, awaiting the High Court's valued opinion on the matter.