2015 (10) TMI 1191 - AT - Central Excise

Claim of refund - deemed fiction of duty paid under protest - period of limitation - Exemption under Notification No. 108/95-CE - Partial refund allowed - Balance refund rejected as barred by limitation - Held that - Admittedly the refund of ₹ 14.25 lakhs (Rupees Fourteen Lakhs Twenty Five Thousand approximately) stands filed by the appellant beyond the normal period of limitation. It is also factually correct that no protest was lost either by M/s. CST or by the appellant for the said period in question. The lower authorities have rightly concluded that the Tribunal s order would be applicable only to the period involved in those appeals and cannot be held to be applicable for the entire period in question. Inasmuch as neither any protest was lodged nor the Tribunal s order covers the period in question, the lower authorities have rightly held the refund to be barred by limitation. The appellants stand that inasmuch as the issue was before the Tribunal by way of an appeal, the duty paid during the subsequent period should be deemed to be having been paid under protest cannot be appreciated as there is a specific procedure to be followed for paying the duty under protest. The appellant having not followed that procedure, the deemed fiction cannot be adopted merely because the earlier order was the subject matter of appeal before the Tribunal. As such I find no infirmity in the views of the lower authorities - Decided against assessee.

Summary

Issues:
1. Refund claim filed beyond the normal period of limitation.
2. Applicability of exemption under Notification No. 108/95-CE.
3. Requirement of lodging a protest for payment of duty.
4. Interpretation of Tribunal's order and its applicability.

Analysis:
1. Refund Claim Limitation: The appellant filed a refund claim of Rs. 64,52,209 for duty paid on goods received from a supplier. The lower authorities allowed Rs. 50,26,495 but rejected the balance as time-barred. The Commissioner (Appeals) upheld the rejection, stating that the claim was beyond the limitation period prescribed under Section 11B. The absence of a protest for the payment of duty during the relevant period was a crucial factor in determining the limitation issue.

2. Exemption under Notification No. 108/95-CE: The supplier claimed exemption under this notification for supplying Welded Austenitic Stainless Steel Tubes to the appellant. The Tribunal's Final Order dated 04.02.2008 favored the supplier, allowing the exemption. However, the supplier continued to pay duty without protest during the dispute. The appellant sought a refund after the Tribunal's decision, which led to the current dispute over the refund amount.

3. Protest Requirement for Duty Payment: The Commissioner emphasized the necessity of lodging a protest for duty paid pending appeal decisions. The absence of a formal protest by the supplier or the appellant during the relevant period impacted the eligibility for refund. The Commissioner highlighted that the duty payment without protest during the appeal period did not automatically qualify as paid under protest, necessitating adherence to the prescribed procedure.

4. Interpretation of Tribunal's Order: The Tribunal's order in favor of the supplier was specific to the period covered by the appeals against the original adjudication orders. The lower authorities correctly concluded that the Tribunal's decision did not extend to the entire period in question. The appellant's argument that the duty paid during subsequent periods should be considered as paid under protest due to the ongoing appeal was dismissed, emphasizing the procedural requirements for such claims.

In conclusion, the Tribunal rejected the appeal as the refund claim was time-barred due to the absence of a formal protest for duty payment and the limited applicability of the Tribunal's order. The decision underscored the importance of following prescribed procedures for lodging protests and the specific scope of appellate orders in determining refund eligibility.