2018 (10) TMI 947 - AT - Central Excise

Refund claim - whether refund can be denied without challenging those assessment orders of refund claims by way of issuance of show cause notice under Section 11A of the Act or not? - Held that - The issue is decided in the case of COMMISSIONER OF CENTRAL EXCISE, VERSUS M/S. JELLALPORE TEA ESTATE 2011 (3) TMI 11 - GAUHATI HIGH COURT , where it was held that Section 11A of the Act not applicable since the issue raised did not concern any approval, acceptance or assessment relating to the rate of duty on or valuation of any excisable goods. Thus, provisions of Section 11A of the Act are not applicable to the facts of this case - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to extended period of limitation for denial of self-credit of duty paid on freight portion from assessable value.

Analysis:
The appellant, engaged in manufacturing Bulk Drugs, availed exemption under Notification No. 56/2002-CE as they were located in Jammu & Kashmir. They cleared goods inclusive of outward freight charges, paying duty through PLA after exhausting Cenvat credit. A show cause notice was issued in 2010 to deny self-credit of duty paid on freight portion from assessable value, claiming excess refund as recoverable. The matter was adjudicated, with demand confirmed but later dropped by the Commissioner (Appeals) due to non-invocable extended period. The appellant appealed this decision.

The appellant argued that the refund claim was initially sanctioned, as outward freight was part of the transaction value, and they correctly paid duty. They cited a case where challenging a refund claim was necessary before issuing a show cause notice under Section 11A of the Act. The appellant contended that the demand for the sanctioned refund claim cannot be challenged without appealing the assessment orders.

On the contrary, the Revenue argued that the appellant intentionally paid duty on transportation charges, forming part of the assessable value, to obtain inadmissible refunds, justifying the invocable extended period of limitation.

After hearing both parties, the Tribunal analyzed the issue of challenging refund claims without appealing assessment orders. Citing a case where the Revenue's attempt to circumvent the law was deemed impermissible, the Tribunal held that Section 11A of the Act was not applicable to the case. Consequently, the demand against the appellant was deemed unsustainable, and the appeal was allowed.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing that the provisions of Section 11A of the Act did not apply to the case, leading to the allowance of the appeal.