2015 (3) TMI 658 - HC - Central Excise

Denial of refund claim - deposit under protest - Whether Customs, Excise and Service Tax Appellate Tribunal was right in holding that the refund claimed by the appellant was governed by provisions of Section 11B of the Central Excise Act, 1944 and was barred by limitation - Held that - The occasion for the Commissioner (Appeals) to go into the matter was because the Assistant Commissioner, i.e., the authority of the first instance who adjudicated on the refund claim did not consider it necessary to address the question whether the refund application was made within time. It was apparently assumed that the show cause notice culminated in the Order in Original on 23.6.2004 and the refund application was made within six months if it were to be reckoned from that date. In a sense, there was an assumption that the application was within the stipulated time and that the second proviso did not come into play. On appeal, however, the Commissioner went into the materials and rendered the finding of fact. That finding of fact has not been upset by the CESTAT. The assessee/appellant s attempt to have that order rectified in miscellaneous proceedings too was unsuccessful, as is evident from the further order dated 4.8.2010 of the CESTAT. In these circumstances, this Court is of the opinion that in fact no question of law arises in the facts of this case. - Decided against assessee.

Summary

Issues:
1. Whether the refund claimed by the appellant was governed by provisions of Section 11B of the Central Excise Act, 1944 and was barred by limitation?

Analysis:
1. The appellant had paid excise duty between 22.2.1999 and 28.8.1999, and later applied for a refund of Rs. 4,12,590. The Assistant Commissioner allowed the refund, stating that the duty was not passed on to the buyer, thus unjust enrichment under Section 11B was not applicable.

2. The Revenue challenged the refund order, claiming the payment was voluntary, not under protest. The Commissioner (Appeals) held that the payment was voluntary, not under any direction, making Section 11B applicable. The CESTAT also upheld this decision, stating the refund application was time-barred.

3. The appellant argued that the refund application was due only after a show cause notice in 2001, not earlier. However, the CESTAT rejected the appeal, finding no error in the Commissioner's decision. The appellant's attempt to rectify the order was also unsuccessful.

4. The High Court dismissed the appeal, stating no question of law arose. The Court clarified that its jurisdiction did not permit delving into factual findings, as the CESTAT's decision was final. Hence, the appeal was devoid of merit and dismissed accordingly.