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TMI Blog2018 (10) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... n of that Division - Held that:- In a case where the assessee is not registered with the Central Excise Department, where to file refund claim of duty borne by him has not been prescribed under the Central Excise Act - further, if the adjudicating authority was of the view that the appellant has not filed refund claim with the authorities which is not competent to entertain the refund claim, he would have transferred the application for refund claim before the competent authority but could not have rejected the refund claim simply on the ground that he had no jurisdiction. Time limitation - Section 11B of the Act - Held that:- Admittedly, in this case, the refund claim initially was filed by the appellant before the DGFT and DGFT has rejected their refund claim only on 10.03.2013, thereafter the refund claim was filed by the appellant on 26.08.2013. In these circumstances, limitation for filing the refund claim was start on 10.06.2013 i.e. relevant date and the refund claim was filed in time. Revenue also contested that as the refund claim has been rejected by the DGFT, therefore, the appellant cannot file the refund claim - Held that:- It is not a case of appeal from one aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on grants the complete exemption from payment of duty and the said Notification nowhere provides for payment of duty and subsequent grant of refund of the said duty. (b) Notification No. 108/95 dated 28.08.1995 provides exemption only the party, who is a manufacturer of the goods. (c) Party has executed its project in Jhajjar District and has procured Bitumen from the various manufacturers who also do not fall under the jurisdiction of this division. Moreover, the party is neither a manufacturer nor registered with Central Excise Division, Hissar thus it appears that the party has not filed the refund claim with the proper jurisdictional officer. (d) A plain reading of Section 11B of the Central Excise Act, 1944, has revealed that the refund claim is not admissible to the party in terms of the said section. (e) The scrutiny of the above said refund claim has also revealed that an amount of ₹ 1,78,40,339.51 out of ₹ 2,32,19,020.91, is also hit by the time bar clause, as the claim has been filed beyond a period of one year from the date of the purchase of the goods, in contravention of the provisions of Rule 11-B of the Central Excise Act, 1944 and the remaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile refund claim. Even otherwise, it is case of payment of duty by mistake and Government has no right to retain because it amounts to violation of article 265 of the Constitution of India. 6. It is further submitted that Notification No. 108/95 is an exemption notification and Central Excise duty is an indirect tax, therefore, even though notification exempt manufacturer from payment of duty at the time of clearance of goods, nevertheless exemption is actually extended to product in question and its buyer. Therefore, it is wrong to say that manufacturer could avail exemption and said notification is not applicable to buyer. The said notification does not prescribe manner of refund, but the respondent has no right to retain legal money of the Appellant when there is no dispute of bearing the burden. It is submissions that in the entire Act, there is no prescribed Assistant Commissioner to entertain refund claims. The propriety further demands that if any authority feels that he is not competent to entertain refund application, he must transfer to Competent Authority. The ld. Assistant Commissioner did not reject the refund claim on the sole ground of jurisdiction whereas the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund is governed by Central Excise Act read with Constitution of India. It is not a case of appeal from one authority to another whereas it is a case of two independent authorities when both are competent to consider the claim. The DGFT did not consider because duty was paid under Central Excise Act. The period spent before DGFT needs to be excluded as per the decision of the Hon ble Gujarat High Court in the case of Choice Laboratories 2015 (315) ELT 197 (Guj.). therefore, he prayed that the impugned order is to be set aside and refund claim be allowed. 10. On the other hand, the Ld. AR reiterated the finding in the impugned order. 11. He further submits the appellant has purchased bitumen for execution of work in Jhajjar District of Haryana whereas, the manufacturer of bitumen were not within the jurisdiction of jhajjar District of Haryana and the appellant as well as the manufacturer was not registered with Central Excise Division, Hissar, therefore, the refund claim are not maintainable. He further submits that the manufacturer of bitumen have never approached to the jurisdictional Assistant Commissioner having jurisdiction, therefore, the refund claim cannot be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent grant of refund of the said duty. (b) Notification No. 108/95 dated 28.08.1995 provides exemption only to the manufacturer of the goods as per their refund claim. (c) Party has executed its project in Jhajjar District and has procured Bitumen from the various manufacturers who also do not fall under the jurisdiction of this division. Moreover, the party is neither a manufacturer nor registered with Central Excise Division, Hissar thus it appears that the party has not filed the refund claim with the proper jurisdictional officer. (d) A plain reading of Section 11B of the Central Excise Act, 1944, has revealed that the refund claim is not admissible to the party in terms of the said section. (e) The scrutiny of the above said refund claim has also revealed that an amount of ₹ 1,78,40,339.51 out of ₹ 2,32,19,020.91, is also hit by the time bar clause, as the claim has been filed beyond a period of one year from the date of the purchase of the goods, in contravention of the provisions of Section 11-B of the Central Excise Act, 1944 and the remaining amount of ₹ 53,78,681.40 also appears to be inadmissible as per the reasons stated above. (f) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deprived of an unwarranted advantage he had under the over-ruled decision. In cases, where the burden is not passed on, there is no prejudice; he can always get the refund. IS SECTION 11B A MERE DEVICE TO RETAIN ILLEGALLY COLLECTED TAXES ? 89. A major attack is mounted by the learned Counsel for petitioners-appellants on Section 11B and its allied provisions on the ground that real purpose behind them was not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the matter of making grants, it is submitted, the Rules are so framed as to make it highly difficult for any consumer organi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in Clause (e) of Explanation-B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned Counsel for appellants-petitioners : it is pointed out that the manufacturer would have paid the duty at the place of removal or clearance of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of removal of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claim will be filed only by purchasers of high priced goods where the duty component is large and not by all and sundry/small p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertained the refund claim on merits. 19. As the issue raised in the show cause notice is that the authorities with whom the refund claim has been filed have no jurisdiction but the said authority entertained the refund claim filed by the appellant on merits, therefore, in the light of the decision of this Tribunal in the case of Swiber offshore Construction PTE. Ltd. reported in 2012 (281) ELT 545 (Tri. Mum.) wherein it has been observed that this Tribunal have no jurisdiction to entertain the appeal but Member (Technical) has remanded the matter back for fresh consideration. As Hon ble Member (Technical) has exercised his jurisdiction to entertain the appeal. In that circumstance, the appeal cannot be dismissed on the ground of lack of jurisdiction , therefore, as in this case, the adjudication authority as well as the appellate authority has dealt the refund claim on merits, in that circumstances, it cannot be said that the authorities below have no jurisdiction to entertain the refund claim with regard to admissibility of refund claim. 20. We further find that it is fact on record in terms of Notification No. 108/95 ibid., the appellant was not required to pay duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.06.2013 i.e. relevant date and the refund claim was filed in time. Moreover, we also take note of the fact that the appellant was not liable to pay duty on the said goods but the supplier of bitumen forced the appellant to pay duty. In that circumstances, the duty which were not payable by the appellant cannot be held duty in terms of the Central Excise Act, therefore, the said amount is only a amount paid by the appellant and that does not form the part of duty paid by the appellant and the same has been paid under bona-fide mistake. In that circumstances, the said amount cannot be retained by the Revenue and is required to be refunded. 25. We further take note of the fact that in the case of Nataraj and Venkatt Associates (Supra) the Hon ble High Court of Madras has entertained the issue wherein the service tax was not payable by the assessee and the petitioner filed claim of refund of service tax paid in the said case, the Hon ble High Court observed as under: 14. Therefore, it is clear that if what was paid cannot be taken to be duty of excise, the bar of limitation under section 11B(1) cannot be applied. This is on account of the fact that the bar of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (359) ELT 113 (Bom.), the issue came up before the Hon ble High Court of Bombay wherein tax was paid under mistake of law. The Hon ble High Court observed as under: 5. We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6. Both decisions have held the limitation prescribed under Section 11B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh v. Doaba Co-Operative Sugar Mills (supra) relied upon by the Appellate Tribunal has in applying Section 11B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it applies the limitation prescribed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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