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TMI Blog2009 (6) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27-7-2006 and further continued to pay the duty at the same rate; that the appellant, vide SCN dated 2-8-2007, was directed to pay the differential amount of Education Cess on the clearances effected during July, 2006 after calculating excise duty hi 25% of BCD + CVD + SAD and Education Cess on BCD and Education Cess on CVD on the basis of formula mentioned in the SCN; that the appellant realized that they have paid differential duty wrongly on the basis of RO s letter dated 17-1-2006 and there is an excess payment during the period from 1-11-2005 to 26-4-2006 and hence, filed a refund claim for the said amount (i.e. Rs. 2,53,586/- BED + Rs. 20,035/- Education Cess and interest of Rs. 14,594/-); that since the refund claim was filed after a lapse of one year i.e. on 17-8-2007, the appellant was directed to show cause as to why the same should not be rejected which is hit by limitation and also the appellant has not shown/filed along with the refund claim any evidence that they have not passed on the incidence of duty to any other person but borne by them or how the said amount of refund is adjusted in their books of account for verification of clause of unjust enrichment ; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid by the appellant is only deposit and not duty of excise and hence, Section 11B is inapplicable; (vi) that further merely filing refund claim under Section 11B, will not lead to conclusion that it was only for duty of excise and the appellant relies on the decision of the Tribunal in the case of M/s. Mahavir Vanaspati Company v. CCE [2008-TIOL-1995-CESTAT-Delhi) = 2009 (239) E.L.T. 91 (Tri.)]; (vii) that without prejudice to the above, the appellant submits that as the amount towards duty was paid subsequent to the clearances of goods (during the adjudication proceedings), it cannot be stated that the assessee has recovered amount from its customers and the appellant relies on the decision of the Hon ble Gujarat High Court in the case of Parle International Ltd. [2001 (127) E.L.T. 329 (Guj.)]; (viii) that without prejudice to the above, the appellant submits that it is settled position of law wherein duty is deposited prior to adjudication proceedings but after clearance of the goods from factory and after the appellant produces certificate from the CA to the effect that the incidence of duty has not been passed on to the customers, the question of unjust enric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh it was raised in the SCN, and also his client replied on this matter, no findings were given by the Assistant Commissioner in his OIO. 3.3 During the course of hearing, they have also submitted case laws, which are applicable to the issue on hand. 4. I have gone through the case records including record of PH and the citations relied upon by the appellant. Before coming to a conclusion, the facts which led to issuance of SCN and rejection of refund claim on account of limitation have to be recaptured. The appellant is an EOU and during the period from September, 2005 to April, 2006 was clearing his final products to DTA at concessional rate in terms of Notification No. 23/2003-C.E., dated 31-3-2003; that the Range Officer, Chiplun vide his letter No. CEX/R-II/USV-100/CORRS/05-06, dated 17-1-2000 objected to the calculations adopted by the appellant and directed the appellant to pay 2% Customs Education Cess on customs duty and basing on the said directions, the appellant on his own worked out the differential duty and paid Rs. 2,53,586/- and Education Cess of Rs. 20,035/- and debited the same in their Cenvat Account Register and for the payment of interest for delayed payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the customers and the appellant relies on decisions mentioned at para 2(viii) supra. 4.2 From the recapture of the events narrated above, it is clear that the appellant has debited BED and cess from their Cenvat Credit Account and paid the interest vide TR6 challan on the basis of RO s letter dated 17-1-2006. These facts are not disputed. Once the payments paid are not under dispute, next question arises whether the above amount could be considered as excise duty. The lower authority has held that since the appellant has debited duty and cess from their Cenvat Credit Account and interest vide TR6 challan, the refund application should have been filed within one year s period as envisaged under Section 11B of the Act. From the above conclusion, it follows that what was paid/debited by the appellant, was duty and accordingly, refund, if any, payable to the appellant has to undergo the tests of Section 11B. According to Section 11B, there are two tests viz. the refund should be filed within the prescribed limit and the applicant should produce proof/evidence that the duty incidence has not been passed on to any one and it is borne by himself. Whereas the appellant claims that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment of the RT-12 returns . 4.3 All the above decisions are directly applicable to the issue on hand. The Apex Court in the case of Pandiyan Roadways Corporation Ltd. mentioned supra upheld the decision of the Tribunal that the extra duty liability raised on RT12 returns cannot be fastened without issue of SCN and providing of an opportunity of PH . In the instant case also, the duty was paid on the basis of letter of RO. The Hon ble Tribunal, Bangalore in the case of Jindal Vijaynagar Steel Ltd. v. CCE [2006 (206) E.L.T. 1039 (Tri.-Bang.)] held that mere appropriation by Revenue without any demand raised or confirmed in terms of SCN will not change the character of deposit during investigation . Further it is held that Section 11B is not applicable for the amount deposited during the investigation . For coming to the above conclusion, the CESTAT also relied on the Apex Court decision in the case of CCE v. Pandiyan Roadways Corporation Ltd. In the instant case also, as already stated that neither the SCN nor the OIO is passed confirming the amount deposited by the appellant on the basis of RO s letter. Therefore, the above amount has to be considered as deposit and accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit by customer should be considered as date of payment of duty giving rise to cause of action - Payment of duty by assessee did not give rise to any cause of action and that the date was irrelevant , (b) CCE v. Gehring India Ltd. [2000 (119) E.L.T. 501 (Tri.-Del.)] - Relevant date for refund is the date of payment of duty vide supplementary invoice and not the date of removal of goods - Refund claim filed within six months from such date is not barred by limitation - Section 11B of CEA, 1944 , (c) Hexacom (I) Ltd. v. CCE, Jaipur [2006 (3) S.T.R. 131 (Tri.-Delhi)] - There is no bar to the return of such amounts - Section 11B of CEA, 1944 , (d) Karnik Maritime Pvt. Ltd. v. CCE, Mumbai-IV [2007 (6) S.T.R. 314 (Tri. Mumbai)] - Limitation commences from date of discovery of error, as prescribed by Section 17 of Limitation Act, 1963 - Period of six months prescribed by Section 11B of CEA, 1944 found inapplicable , (e) Prachar Communications Ltd. v. CCE, Mumbai-IV [2006 (2) S.T.R.) 492 (Tri.-Mumbai)] - Assessee paid back excess service tax by them to their customers, entitled to adjustment of same in terms of Rule 6 of Service Tax Rules, 1994 and this havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 537 (Tri.-Kolkata)] wherein the Hon ble Tribunal relying on the decision of the Hon ble Punjab and Haryana High Court in the ease of CIT v. Palwal Co-operative Sugar Mills Ltd. [2006 (284) ITR 153 (P H)] HELD :- the requirement of recording of reasons and communication thereof has been read as an integral part of the concept of fair procedure. The necessity of giving reasons flows from the concept of rule of law which constitutes one of the cornerstones of our constitutional set up the requirement of recording of reasons by such authorities is an important safeguard to ensure observance of the rule of law - Another reason which makes it imperative for the quasi-judicial authorities to give reasons is that their orders are not only subject to the right of the aggrieved persons to challenge the same by filing statutory appeal and revision but also by filing writ petition under Article 226 of the Constitution - This power of judicial review can be effectively exercised by the superior courts only if the order under challenge contains reasons. If such order is cryptic and devoid of reasons, the courts cannot effectively exercise the power of judicial review and we cannot counte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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