9911796707
TMI Blog2010 (1) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... E., dated 28-2-99 (S. No. 275 of the table to the notification) prescribes a concessional rate of excise duty on goods falling under any chapter but specified in list 8 to the notification,, when supplied to Oil and Natural Gas Commission (ONGC) or Oil India Ltd. (OIL), subject to condition that if the use of the goods is elsewhere than in the factory of manufacture, the procedure set out in Chapter X of the Central Excise Rules, 1944 (CER, 1944) is followed. The ONGC, Mumbai wanted to procure "BOP Test unit and chart recorder alongwith accessories" from the Appellant and for this purpose, as per the provisions of Chapter X of CER, 1944, they obtained the required permission from the jurisdictional Commissioner and also a CT-2 certificate from Superintendent, Uran Range, Panvel Division, Mumbai-V Commissionerate. The CT-2 Certificate, however, mentioned the item to be procured as "BOP accumulator unit alongwith chart recorder and accessories". Though against this CT-2 certificate, the Appellant supplied "BOP Test unit and chart recorder alongwith accessories" to ONGC at concessional rate of duty, the jurisdictional range Superintendent of the Appellant at Dehradun, taking the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d)] set aside the Tribunal's order dated 3-10-07 as the same had been passed ex parte and remanded the matter to the Tribunal for de novo decision after granting opportunity of hearing to the Appellant. Accordingly, this matter has been taken up for de novo decision. 2. Heard both the sides. 2.1 Shri P.R. Mullic, Advocate, the learned counsel for the Appellant made the following submissions. (1) The clearance by the Appellant to ONGC against CT-2 certificate have to be treated as provisional under Rule 9B as, as per the requirement of Chapter X of CER, 1944, these clearances have to be made against a B-8 bond even though in this case, the buyer being a Public Sector Undertaking, the requirement of Bond had been waived in terms of the provisions of Rule 221A. In view of this, the limitation period under Section 11B is not applicable from the date of payment of duty. The refund claim was, therefore, within time. (2) That the payment of duty was provisional is clear from the series of correspondence between the Appellant, the Range Superintendent Dehradun Range-II, the customer - ONGC, Mumbai and Superintendent Uran Range, Panvel Division. Though the duty was initially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law to get over such limitation, but neglected to take recourse to such means. (3) The clearances against CT-2 cannot be treated as clearances under provisional assessment. In this regard, reliance is placed on Hon'ble Supreme Court's judgment in case of Metal Forgings v. UOI reported in 2002 (146) E.L.T. (241) (S.C.) (4) The ratio of Hon'ble Supreme Court's judgment in case of CCE v. Rallis India Ltd. reported in 2002 (142) E.L.T. 19 (S.C.) was cited. In this case, the Respondent claimed the benefit of Notification No. 270/77-C.E., dated 20-8-77 which was applicable to an assessee whose production during the financial year was less than 360 MTs. The Respondent initially paid duty on clearance of 150 MTs of Sodium Hydrosulphlte when at the end of the financial year he learnt that the clearances were less than 360 MT. Hon'ble Supreme Court held that even in such a situation, the limitation period would be computable from the date of payment of duty as neither the duty had been paid provisionally nor the payment was under protest. (5) Since the appellant neither took recourse to provisional assessment nor paid the duty under protest, the period of limitation has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal assessment. The CCE (Appeals) has upheld the above order of the Assistant Commissioner. According to the Appellant, 16-11-99 is to be treated as the relevant date for counting limitation period, and on this basis, the refund claim filed on 10-2-2000 is within time. 5.2 The provisions of Section 11B regarding limitation period and the 'relevant date' for counting limitation period during the period of dispute were as under - "Section 11B. Claim for refund of duty - (1) Any person claiming refund of duty of excise may make an application for refund of such duty to the Assistant, Commissioner of Central Excise or Deputy Commissioner of Central Excise, before the expire of six months from the relevant date, in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed, was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person. x x x Provided further that the limitation of six m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or revision is not available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may, within three months of the date of (delivery of letter of protest, give a detailed representation to the Assistant/Deputy Commissioner. Rule 233B(8) provided that if the provisions of sub-rule (1) to (7) of Rule 233B have not been followed, the duty will be deemed to have been paid without protest. As per the judgment of Hon'ble Supreme Court, in case of Dena Snuff (P) Ltd. v. CCE, Chandigarh reported in 2003 (157) E.L.T. 500 (S.C.), where the duty has been paid under protest and the decision has been taken on the protest, the period of limitation would start to run from the date of final decision on the protest in the assessee's own case (para 5 of the judgment). 5.3 Though during the period of dispute, there was no provision as to what would be the "relevant date" when the refund claim arises on account of an order, judgment, decree or direction of an appellate authority, Appellate Tribunal or any court and specific provisions in this regard were made by introducing a clause (ec) in Explanation (B) to Section 11B, w.e.f. 11-5-07 by which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of the order, decree or direction of such Appellate authority, Tribunal or Court. 5.5 In the present case, neither the duty had been paid under protest, which is clear from the duty paying document as well as from the letter dated 18/19th April 1999 of the Appellant to the Superintendent, Range - II, Dehradun, confirming the payment of duty as per his direction, nor the order dated 9-4-99 of the Superintendent directing the Appellant to pay the duty forthwith and in pursuance of which the duty was paid on 9-4-99, was challenged before any higher authority, appellate authority or court. The refund claim was filed when the Range Superintendent Uran, Panvel Division, in response to Range Superintendent, Dehradun's letter dated 9-4-99 clarified that the 'BOP Accumulator Unit" is same as "BOP Test unit" and is eligible for exemption. Therefore we hold that in this case, the duty payment cannot be said to have been made under protest. 5.6 It has been pleaded by the Appellant that since the goods had been cleared against CT-2 by following the Chapter X procedure, the Assessment of duty for them must be treated as provisional assessment. We do not agree with this plea as for an as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Economic Affairs, during period from 1-1-94 to 12-10-94 on payment of duty. On 21-9-94, an ad-hoc exemption order was issued by the Government under Section 5A(2) of the Central Excise Act, 1944 and on 17-11-94, SAIL filed a refund claim for refund of duty paid during 1-1-94 - 12-10-94 period. A part of the refund claim was rejected by the Assistant Commissioner as time barred. The Tribunal in this case, held that since clause (ea) of Explanation B to Section 11B was not there during the period of dispute, and this clause could not be given retrospective effect and since the duty had neither been paid provisionally nor under protest, the "relevant date" would be the date of payment of duty, not the date of ad-hoc exemption order. The Tribunal in this case also observed that the rule of equity embodied in legal maxim - "lex non cogit ad impossibilia" cannot be invoked to get over a statutory period by a party who had alternative means in law to get over a such limitation but neglected to take such means and that where the assessee could get over the bar of limitation under Section 11B of Central Excise Act, 1944 by making duty payment either under protest or under provisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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