2000 (2) TMI 328 - AT - Central Excise

Summary

Issues Involved:
1. Refund of Central Excise duty paid by the assessee without challenging the orders within the appeal period.
2. Refund claim under protest after not challenging the order of lower authority.

Analysis:

Issue 1: Refund of Central Excise duty paid without challenging the orders within the appeal period.

The case involves the Revenue filing an application under Section 35G(1) of the Central Excise Act, 1944, seeking reference of questions of law arising from Tribunal's Final Order. The respondents, manufacturers of Video Cameras and Electronic Game Cartridges, were issued show cause cum demand notices for short payment of duty. Despite paying the duty under protest, they did not appeal against the orders-in-original confirming the demands. However, they later filed appeals against similar orders from a prior period. The Tribunal remanded the case for de novo adjudication, resulting in the Assistant Collector dropping the proceedings and the assessees filing refund claims. The refund claim was rejected by the Assistant Collector and Commissioner (Appeals) before being allowed by the Tribunal, subject to the bar of unjust enrichment.

Issue 2: Refund claim under protest after not challenging the order of lower authority.

The Revenue contends that paying duty under protest became irrelevant once the appeal period against the original orders expired. They argue that a refund claim is not maintainable unless consequential relief is sought and granted for the specific period, citing the need for the correct interpretation of the proviso to Rule 223B of the Central Excise Rules. As there is no authoritative pronouncement by any Court on this matter, a question of law arises regarding the limitation on refund claims when orders have attained finality due to non-appeal. The Tribunal referred the question to the Hon'ble Rajasthan High Court for clarification on whether a claim for refund of duty paid under protest is barred by limitation when the order of the Adjudicating Authority has not been challenged, resulting in finality.

This judgment raises significant legal questions regarding the refund of duty paid under protest and the impact of not challenging adjudication orders within the appeal period. The decision emphasizes the need for clarity on the interpretation of relevant rules and the implications of finality of orders on refund claims, warranting a reference to the High Court for a considered opinion.