2021 (6) TMI 857 - AT - Central Excise

Refund of excess cost recovery charges - adjustment of cost recovery charges against amount dues - speaking order sought, was declined on the ground that adjustment of cost recovery charges is administrative in nature - HELD THAT - The order of Hon ble High Court dated 06.10.2017 has to be read with the earlier Final Order of the Hon ble High Court dated 04.05.2017. The Hon ble High Court granted liberty to the appellant to apply for review or restoration of the writ application in case of difficulty, while disposing of the writ application on 04.05.2017. Thereafter, when the appellant approached the Hon ble High Court in review on Miscellaneous application for revival of the application, the Hon ble High Court directed the appellant to pursue the appellate remedy in view of the subsequent Order-in-original dated 19.06.2017, (allowing truncated amount of refund). Thus, in the facts and circumstances of the present case, limitation has to be computed on and from 06.10.2017 (plus the time taken in obtaining certified copy of the miscellaneous order) - thus, the appeal filed before the Commissioner (Appeals) was within time. This appeal is allowed by way of remand to the Commissioner (Appeals) with the direction to hear the appeal on merits.

Summary

Issues:
Appeal against dismissal based on limitation

Analysis:
The appellant, engaged in manufacturing and export, deposited excess cost recovery charges during 1999-2004. Following Board instructions, the appellant sought a refund, which was partially allowed by the jurisdictional Commissioner for the financial year 2000-01 onwards. The Assistant Commissioner determined a refundable amount, but erroneously adjusted it against non-existent charges for 2004-05. The appellant's request for a speaking order was denied, citing administrative nature of adjustments. Subsequent appeals and orders led to discrepancies in refund amounts and adjustments, prompting the appellant to file a civil writ petition in the Rajasthan High Court against the Assistant Commissioner's decisions.

During the writ petition, the Tribunal set aside a significant demand against the appellant. The High Court directed the Department to decide on the appellant's refund application, which was submitted along with a request for interest payment. The Deputy Commissioner granted a truncated refund without addressing the interest claim. The appellant, dissatisfied with this decision, filed a miscellaneous application before the High Court, which advised pursuing appeal remedies for subsequent orders.

Subsequently, the Commissioner (Appeals) dismissed the appeal on the ground of limitation, leading the appellant to challenge this decision by highlighting the High Court's directions and the period taken for review applications. The Revenue representative argued that the High Court's condonation of time was limited to a specific period. The Member (Judicial) analyzed the situation, considering the High Court's previous and subsequent orders, concluding that the appeal to the Commissioner (Appeals) was within the time limit. The decision allowed the appeal, remanding it back to the Commissioner (Appeals) for a detailed review based on specified orders and considerations, with a directive for timely refund and interest payment.

In conclusion, the appellant's appeal against dismissal based on limitation was successful, with the Member (Judicial) directing a remand to the Commissioner (Appeals) for a thorough review and timely refund with interest, in line with legal precedents and directions from higher authorities.