2017 (11) TMI 85 - AT - Central Excise

Service of letter - Refund of CENVAT credit with interest - denial on the ground of limitation - whether the appellant s letter dated 20.11.2008 claiming that the amounts paid by them were under protest is received by the authorities or otherwise? - Held that - the claim of the appellant that they have sent some letter under certificate of posting seems to be correct, however, I find that there is definitely an anomaly in the said letter dated 20.11.2008 being posted under certificate of posting to the jurisdictional Assistant Commissioner. It is seen from the records that the said letter dated 20.11.2008 is addressed to the Superintendent of Central Excise (Preventive), Hassan and the letter under certificate of posting also indicates the same address. In my view, when the refund application is filed with the Assistant Commissioner of Central Excise, Customs and Service Tax, Malanadu Division, the letter addressed to Superintendent (Preventive), Hassan is misaddressed and definitely cannot be considered as delivered to the jurisdictional Assistant Commissioner. There seems to be a very serious anomaly as the letter sought to be relied upon by the appellant is of 20.11.2008, while the letter which is indicated to the postal authorities as being in the envelope is showing date of 9.11.2008. This anomaly has not been explained by the appellant anywhere in the grounds of appeal. Appeal dismissed - decided against appellant.

Summary

Issues:
Refund of CENVAT credit and interest, Time limitation for refund claim, Payment under protest, Delivery of letter under certificate of posting.

Analysis:
The appeal was filed against an Order-in-Appeal regarding the refund of an amount paid towards credit and interest. The appellant's factory was audited, and an objection was raised about the eligibility to avail CENVAT Credit, leading to the appellant reversing the amount along with interest. Subsequently, a refund claim was filed, which was contested by revenue authorities citing time limitation. The appellant claimed to have sent a letter under certificate of posting stating the payment was made under protest. The appellant relied on previous tribunal judgments to support their claim for a refund.

The dispute centered around whether the letter sent by the appellant claiming payment under protest was received by the authorities. The appellant argued that the letter was sent under certificate of posting, while the revenue authorities contended that they did not receive such a letter. The Tribunal noted an anomaly in the address on the letter, indicating misaddressing to a different authority. The appellant presented evidence of sending an envelope under certificate of posting, but a discrepancy in dates raised doubts about the authenticity of the claim.

After considering the submissions, the Tribunal found that the letter claiming payment under protest was not delivered to the jurisdictional Assistant Commissioner due to misaddressing. Despite evidence of sending a letter under certificate of posting, the anomaly in dates and lack of explanation from the appellant led to the rejection of the appeal. The impugned order was upheld, and the appeal for the refund was rejected based on the findings of the Tribunal.

In conclusion, the Tribunal dismissed the appeal, upholding the decision regarding the refund claim due to the failure to establish the delivery of the letter claiming payment under protest. The judgment emphasized the importance of proper addressing and clarity in communication when claiming refunds under protest, highlighting the need for accurate documentation and adherence to procedural requirements in such cases.