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TMI Blog2022 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... r Deputy Commissioner of Central Excise as the case may be, by the 7th of next month by the manufacturer - Although in the show-cause reply, it is stated that RT-12 Returns were regularly filed but there is no pleading with regard to any statement of fact as to whether the RT-12 Returns filed by the appellant/assessee were as per the procedure prescribed under Clause-2(a) of the Notification No. 33/99-CE dated 08.07.1999. There is completely no statement to that effect. Rather categorical statement is made in the show-cause reply that because of different stands taken by the Department at different times the manufacturer/appellant did not submit their claims at the relevant point in time. Applicability of time limitation under Section 11B of the Central Excise Act, 1944 - HELD THAT:- In the proceedings before the Department there is no finding that the procedure prescribed under Clause 2(a) of the Notification No. 33/99-CE dated 08.07.1999 had been duly followed by the appellant. Rather in its reply to the show-cause Notice, the appellant only cited reasons for late filing of its refund claims. In the facts of the present case, there are no clear averments made by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1999. 3. A show cause notice No. C. No. V(18)24/DCJ/REF/06/6892 dated 18.12.2008 was issued by the Department asking the appellant to show-cause as to why their claims should not be rejected as the same were submitted after about nine (9) years from the date of completion of expansion. The assessee replied to the show-cause notice stating that the limitation under Section 11B of the Central Excise Act, 1944 is not applicable in respect of refunds claimed under Notification No. 33/99-CE dated 08.07.1999. According to the appellant, because of certain confusions which arose during that period, they did not press their refunds initially. 4. The Assessing Officer upon hearing the authorized representatives of the appellant vide the order dated 20.02.2009 rejected the claims of the appellant. Being aggrieved, an appeal before the Commissioner, Customs and Central Excise (Appeals) was preferred against the order of the Assessing Officer. The First Appellate authority vide order dated 10.08.2009 allowed the appeal setting aside the order passed by the Assessing Officer, namely the Assistant Commissioner, Central Officer, Jorhat, holding that the appellant is entitled to its refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claims of the appellant on the ground of limitation is wholly unjustified as the Central Board of Excise Customs vide letter No. 354/8/98-TRU (Part-II) dated 06.10.1999 clarified that the provisions of Section 11B of the Central Excise Act, 1944 are not applicable in case of refunds claimed under Notification No. 33/99-CE dated 08.07.1999. He further relies upon a Judgment of a Co-ordinate Bench of this Court rendered in M/s M.K. Jokai Agri Plantations (P) Ltd Vs. Commissions of Central Excise Service Tax, Dibrugarh reported in 2018 (361) E.L.T. 393(Gau) to submit that this High Court has also held that refund claims under Notification No. 33/99-CE dated 08.07.1999 cannot be denied/negated on account of limitation. The Tribunal, therefore, erred in interfering with the findings of the Commissioner (Appeals) and the impugned order should therefore be set aside and quashed. 7. Mr. S.C. Keyal, learned Senior counsel for the Revenue on the other hand disputes the contentions of the learned counsel for the appellant. Mr. Keyal submits that there is no infirmity in the order of the Tribunal and the Tribunal had correctly restored the order of the Assessing Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification shall be given effect to in the following manner, namely :- (a) The manufacturer shall submit a statement of the duty paid from the said account current to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid from the account current. (b) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month. (c) If there is likely to be any delay in the verification, Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer 4. The exemption contained in this notification shall apply only to the following kind of units, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 are not applicable, however, unless the Notification No. 33/99-CE dated 08.07.1999 is amended by the Central Government, the procedure prescribed thereunder including the requirement of filing statement of duty paid by the manufacturer by the 7th of next month as prescribed under Notification cannot be waived at the instance of the manufacturers/assessee unilaterally. Such an interpretation will amount to waiver of the procedure prescribed under the Notification by the Department/Central Government. Such proposition cannot be accepted more particularly in respect of revenue matters where public finance is involved. Although in the show-cause reply, it is stated that RT-12 Returns were regularly filed but there is no pleading with regard to any statement of fact as to whether the RT-12 Returns filed by the appellant/assessee were as per the procedure prescribed under Clause-2(a) of the Notification No. 33/99-CE dated 08.07.1999. There is completely no statement to that effect. Rather categorical statement is made in the show-cause reply that because of different stands taken by the Department at different times the manufacturer/appellant did not submit their claims at the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming benefits under the notification, the appellant is entitled to the refund claims made. Such contention of the appellant is clearly opposed to the law laid down this Court in M/s Jokai Agri Plantations Pvt. Ltd (Supra). 16. It is also pertinent to note that the earlier order of the Tribunal rendered in Vernerpur Tea Estate Vs. Commissioner of Central Excise, Shillong and reliance upon which was placed by the Tribunal while passing the order dated 30.08.2017 impugned in the present appeal, has in the meantime being interfered with by the same Co-ordinate Bench of this Court. This Court in Vernerpur Tea Estate reported in 2018 0 Supreme (Gau) 69 also held that no limitation under Section 11B of Central Excise Act, 1944 will be applicable in refund claims under Notification No. 33/99-CE dated 08.07.1999, provided the twin conditions prescribed under Clause 2(A) of the Notification No. 33/99-CE dated 08.07.1999 are fulfilled. We respectfully concur with the Judgments rendered in M/s Jokai plantations (Supra) and Vernerpur Tea Estate Pvt Ltd (Supra). 17. We have also carefully perused the substantial questions raised by the appellant. The substantial questions do no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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