9911796707
TMI Blog2023 (5) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant date‟ is then defined under the Explanation as given above and the relevant clause (ec) specifically provides that in case the amount is refundable as a consequence of a judgement or order of an appellate Tribunal or any Court, it is the date of such judgement, decree, order or direction - In the present case, the amount became due by virtue of the decision of the Tribunal in [ 2018 (4) TMI 1787 - CESTAT NEW DELHI] whereby the impugned order including the subsidy amount in the transaction value was set aside and the appeal was allowed with consequential relief, which obviously implied that the amount so deposited by the appellant has to be refunded and therefore if the period of one year is computed from the said date, the application for refund dated 09.01.2019 was within the limitation period of one year. On this count itself the refund claim ought to have been allowed. Whether the amount deposited by the appellant was under protest ? - HELD THAT:- Having considered, the Supplementary Instructions, Chapter 13 of CBECs Excise Manual, which provides the procedure to be followed, it is found that it seems to be substantially complied with as the Cenvat account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 69,750/- during the period July 2016 to September 2016. On being pointed out by the audit the assessee admitted the short duty payment on value of Rs. 5,58,000/-. Similar to above, agreeing with the view of audit, the assessee voluntarily reversed duty of Rs. 69,750/- vide cenvat debit entry dated 29.11.2016 and deposited interest of Rs. 2733/- vide challan dated 30.11.2016. The para was raised and settled. Suitable information was communicated to the assessee vide letter C. No. V(I)814/IAR/GR-9/Bhiwadi/2016-17/3977 dated 13.12.2016. (c) Documents on record including aforesaid audit report dated 19.05.2015 13.12.2016 have no evidence to support the version of the assessee that they deposited duty/ penalty/ interest etc. under protest, on the contrary, as per the documents available on records, it is observed that they were in agreement with the view of the audit and therefore voluntary deposited the duty along with the interest and penalty. (d) The duty on VAT subsidy was last deposited on 30.11.2016 by them, during this long span of time i.e., from March, 2013 to November 2016 or thereafter, if they had any kind of doubt or protest, they were required to submit letter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs were set aside and the appeal was allowed with consequential relief. 7. Thus the matter on merits concerning the amount of subsidy in question was finally decided by the Tribunal vide its judgement dated 27.04.18, wherein the appellant was a party at Serial No. 47. The said order was communicated to the appellant as per the endorsement on the true copy of the order on 04.05.2018. In terms of the consequential relief granted by the Tribunal the appellant made the application for refund on 09.01.2019, which was within the period of limitation of one year from the date of the order of the Tribunal on 27.04.2018/ 04.05.2018 as per clause (ec) of Explanation B to section 11B defining the term relevant date‟. For proper appreciation, the relevant portion of section 11B is quoted below:- 11B. Claim for refund of duty and interest, if any, paid on such duty - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction ; (f) in any other case, the date of payment of duty.] From the reading of the above provisions, it is crystal clear that section 11B (1) prescribes the period of one year from the relevant date and the term relevant date‟ is then defined under the Explanation as given above and the relevant clause (ec) specifically provides that in case the amount is refundable as a consequence of a judgement or order of an appellate Tribunal or any Court, it is the date of such judgement, decree, order or direction. In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount deposited by the appellant was erroneous as the department directed them to do so. The Tribunal while rejecting the plea of the revenue on merits have specifically held that the subsidy amount cannot be included in the transaction value for the purpose of excise duty and also directed for consequential relief to the appellant. In that view, I find that the Commissioner (Appeals) committed an error of law in holding that the period of levy of excise duty on VAT subsidy was from March 2010 to November 2016 and during this period, the appellant had deposited the excise duty on VAT when there was no order of CESTAT which declared not to impose levy of Central Excise duty on VAT subsidy and therefore, there was no mistake of law in payment of central excise duty on VAT subsidy. That such a finding is highly contemptuous as the appellant was a party before the Tribunal and the decision being applicable to them, which would then relate back to the period in question as well as to the consequences that would ensue by virtue of the said decision. 9. Now, I will deal with the issue whether the amount deposited by the appellant was under protest‟. According to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
