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TMI Blog2019 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... , 11AC. Wherever the duty has been paid in excess of what was required to be paid or has been claimed to be paid in excess of what have been required to paid, the provisions of Section 11B apply in full force. Appeal disposed off. - E/30487/2018 & E/30736/2018 - A/30439-30440/2019 - Dated:- 28-3-2019 - Mr. P. Venkata Subba Rao, Member (Technical) Shri Y. Sreenivasa Reddy, Advocate for the Appellant. Shri Arun Kumar, Shri A.V.L.N. Chary, (ARs) for the Respondent. ORDER [Order per: P. Venkata Subba Rao] These two appeals are filed by the appellant on same issues and hence are being disposed of together. 2. Heard both sides and perused the records. 3. The facts of the case in these two appeals are as follows: Appeal No. E/30487/2018 has been filed against the rejection of refund claimed by the appellant amounting to ₹ 7,10,541/- paid by them during the period February and March, 2016 in respect of which they filed a refund claim on 12.05.2017. The facts of the case in brief are that the appellants are manufacturers of Natural Fertilizers, Microbial based Bio-Fertilizers and were manufacturing a product called Cereal Protein Hydrolysate liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds: The Micro Nutrient Fertilizers which they manufacture would fall under Central Excise Tariff Heading 3101. During the year 2005, a notice was issued proposing to re-classify the goods under CETH 3105 which was dropped by the Adjudicating Authority. Again in the year 2016, another show cause notice was issued proposing to classify the goods under CETH 3105 in respect of fertilizers and under CETH 3002 in respect of micro organisms. During the intermittent period, the antievasion officers made the appellant pay duty on the same fertilizers on the ground that they fall under Central Excise Tariff Heading 3808. Thereafter, the department issued a letter dated 08.08.2016 (referred to above). Since the amounts were wrongly collected, the appellant they have filed the refund claims which were rejected wrongly in view of the following: i) The amounts were paid by them during investigation and the same are to be treated as deposit and limitation does not apply for such cases. ii) The refund was claimed in respect of payments made on micronutrient fertilizers which attract 1% of duty under CETH 3105 whereas the department collected duty at 10.3%. Therefore, they entitled to refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded under Section 11AC. Even in this case, there is nothing on record to show that the appellant have filed a letter of protest or refuted the letter of the department regarding the conclusion of proceedings under Section 11AC. The amount was paid in February, 2016 and thereafter the refund claim was filed on 13.02.2017. This application for refund was also rejected by the lower authority holding that the payments made by the appellant are not under protest, nor have they refused closure of the case under Section 11AC without issuance of show cause notice. In view of the above, the adjudicating authority held that they are not eligible for any refund of payments made by them voluntarily requesting closure of the case under Section 11AC of the Central Excise Act, 1944. 8. Aggrieved, the appellant appealed before the First Appellate Authority who agreed with the finding of the lower authority and rejected the appeal. Hence this appeal on the following grounds: i) The refund was rejected holding that the amount paid was relating to bio-fungicides which fall under CETH 3808 and that they had admitted the liability on bio-fungicides and voluntarily paid the amount. ii) This ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They would have been issued a show cause notice and the normal Adjudicating proceedings would have followed. They have done none of these. Even after the department issued a letter under Section 11AC there is nothing on record to show that the assessee has protested or indicated that they require a show cause notice or contested the amounts paid. In view of these facts, the entire proceedings have concluded in terms of Section 11AC the assessee having paid the amounts. If the assesee felt, thereafter, that the amounts were wrongly paid and the same should be refunded, they could have filed a refund claim under Section 11B. In Appeal No. 30487/2018, they filed a refund claim under Section 11B well beyond the expiry of one year. Therefore, the refund application is hit by time bar. The assessee pleads that when duty which is not supposed to be paid was under Section 11B limitation of time bar should not apply. In this case, the appellant was liable to pay duty at a lower rate as per their classification and were liable to pay duty at higher rate as per the department s classification. It is not a case where the assessee is not manufacturing excisable products and were made to pay ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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