1999 (12) TMI 459 - AT - Central Excise

Issues Involved:
1. Whether the pre-deposit of duty made during the pendency of the appeal should be treated as made "under protest."
2. Whether the limitation of six months under Section 11B(1) of the Central Excise Act applies to the refund claim of the pre-deposited amount.
3. Whether the Assistant Commissioner had jurisdiction to reject the refund claim as time-barred.
4. Whether the Tribunal has jurisdiction to entertain the application under Rule 41 of the CEGAT (Procedure) Rules after the appeal was disposed of.
5. Whether the applicants were entitled to a refund of the pre-deposited amount and return of the National Savings Certificate after the Tribunal set aside the order of adjudication.

Issue-wise Detailed Analysis:

1. Pre-deposit of Duty "Under Protest":
The learned Advocate argued that the pre-deposit made during the pendency of the appeal should be treated as made "under protest," referencing the Supreme Court's ruling in Mafatlal Industries Limited v. Union of India. The Tribunal agreed, stating that when duty is paid under the orders of the Tribunal pending an appeal, it will be a payment "under protest," and the limitation of six months under Section 11B(1) does not apply.

2. Limitation under Section 11B(1):
The Tribunal held that the limitation of six months prescribed under Section 11B(1) of the Central Excise Act does not apply to claims for refunds of amounts pre-deposited during the pendency of an appeal. This was supported by the Tribunal's previous decisions in Wazir Steel Industries and Gujarat State Fertilisers and Chemicals Limited, which held that there could be no limitation in implementing an order passed by any adjudicating forum.

3. Jurisdiction of Assistant Commissioner:
The Tribunal found that the Assistant Commissioner had no jurisdiction to reject the refund claim as time-barred. The refund claim was a relief consequential to the Tribunal's order setting aside the order of adjudication. The Assistant Commissioner should have allowed the claim to implement the Tribunal's order. The Tribunal cited its decision in LML Limited, where it was held that the refund was implicit in the appeal decided in favor of the party.

4. Tribunal's Jurisdiction under Rule 41:
The Tribunal asserted its jurisdiction under Rule 41 of the CEGAT (Procedure) Rules to make orders or give directions necessary to give effect to its orders or to secure the ends of justice. The Tribunal rejected the argument that it had become functus officio and could not entertain the application. The Tribunal emphasized that the refund claim was not a claim for refund of duty under Section 11B but an application for implementing the Tribunal's final order.

5. Entitlement to Refund and Return of National Savings Certificate:
The Tribunal held that the applicants were entitled to a refund of the pre-deposited amount and the return of the National Savings Certificate. The Assistant Commissioner had no authority to sit in judgment over the Tribunal's order. The Tribunal directed the Assistant Commissioner to refund the amount of Rs. 2,17,389 and return the National Savings Certificate of Rs. 60,000 within three months. Additionally, the Tribunal directed the Commissioner of Central Excise to dispose of the party's appeal pending before him pursuant to the Tribunal's order of remand within six months.

Conclusion:
The Tribunal allowed the application, setting aside the Assistant Commissioner's order rejecting the refund claim. The Tribunal directed the refund of the pre-deposited amount and the return of the National Savings Certificate, emphasizing the need to implement the Tribunal's orders and secure the ends of justice.

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