9911796707
TMI Blog2024 (7) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... misinterpreted the decision of the Hon ble Apex Court in the Modipon Ltd, therefore the said decision is not applicable to the facts of this case. The provisions of Section 11B are not applicable for deposit lying in PLA account for refund and same is to be treated as deposit. The impugned order set aside - refund allowed - appeal allowed. - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) Shri G. G. Gupta , Advocate for the Appellant Shri Kuldeep Rawat , Authorized Representative for the Respondent ORDER ASHOK JINDAL The appellant is in appeal against the impugned order wherein refund filed by the appellant has been denied by the learned Commissioner (Appeals). 2. The facts of the case are that the appellant is manufacturer of excisable g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B are not applicable and consequently, it was held that refund claim cannot be held time barred. Revenue challenged the order of the adjudicating authority before the learned Commissioner (Appeals) on the ground that refund claim filed by the appellant is barred by limitation. The learned Commissioner (Appeals) relying on the decision of Commissioner of Income Tax II Vs. Modipon Ltd. in Civil Appeal No 19763 of 2017 vide order dated 24.11.2017 held that the amount deposited in PLA is duty, therefore, provisions of Section 11B of Central Excise Act, 1944 are applicable to the facts of the case and refund claim filed by the appellant is barred by limitation. Against the said order, the appellant is before me. 3. Learned counsel appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve carefully considered the submissions made by both the sides and perused the record. The limited issue falls for my consideration is that whether in respect of refund of unutilized PLA balance, limitation of one year, provided under Section 11B is applicable from the date of deposit in PLA. I find that the deposit in PLA is not a payment of duty whereas it is an advance deposit for future payment of duty. The PLA balance takes the color of duty only when duty payable is debited from the PLA balance. In the present case, undisputedly the PLA balance for which refund is sought for is out of advance deposit made by the appellant in PLA and out of that unutilized balance has been claimed as refund. Therefore, limitation of Section 11B is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of duty. This is not disputed by the Commissioner (Appeals). However, referring to clause (b) of the proviso to subsection (2) of Section 11B, the Commissioner records that unjust enrichment shall not apply to refund of unspent PLA balance, but at the same time he also records that he does not mean that the unspent PLA balance is duty. He has recorded that the said provision has been incorporated as an abundant precaution to ensure that even by mistake, the provision of unjust enrichment is not applied for such refund. He also records that since there is a specific provision for refund of PLA balance under Rule 9(1A) and 173G(1A) of the said Rules, therefore, such refund would be squarely covered under the said Rules and not under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount current, the [Commissioner] may, for reasons to be recorded in writing permit such assessee to withdraw the amount in accordance with such procedure as the [Commissioner] may specify in this behalf. It is clear that for withdrawing an amount from such account current only requires a permission from the Commissioner concerned. Neither the law of limitation nor the theory of unjust enrichment is applicable on such deposit. It is the money belonging to the appellant and has a right to withdraw it. There is a distinction between the amount appropriate towards duty and amount deposited for payment of a duty. In a former case duty which has only been levied and paid evidently becomes the property of the Government and no person would be enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption of duty on Tea Tea Waste w.e.f 1-3-03, the claim of the appellants was denied. 3. Ld. DR for the Revenue submitted that if any refund of duty is claimed under Central Excise Act, 1944, due process of law as required under Section 11B of Central Excise Rules, 1944, should be followed and the authorities have rightly rejected claim for the appellant. Meeting to such point, the ld. Counsel has submitted that the Central Board of Excise Customs has already issued instruction vide F. No. 202/24/72-CX. 6, dated 6-1-78, in consultation with the Ministry of Law to the effect that un-utilised amount in PLA is refundable to the appellants and relying on this instruction, the appellant submitted that this Bench has already decided such matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
