9911796707
TMI Blog2024 (10) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is that in such a case, the limitation period will not apply. I do not agree with this contention. The Hon'ble Supreme Court in para 5 of its judgment in the case of Dena Snuff (P) Ltd. v. CCE, Chandigarh 2003 (157) E.LT. 500 (S.C.) after considering the Hon'ble Supreme Court's judgment in case of Mafatial Industries Ltd. v. Union of India (supra) has held that even when the duty has been paid under protest, the period of limitation would be start to run from the date of the final decision in the assessee's own case. In this case, the duty had been paid by the appellant voluntarily prior to the issue of the show cause notice and subsequently the demand was dropped by the Additional Commissioner, Central Excise, Kanpur and the order was not challenged before Hon'ble Tribunal Allahabad. Even if the payment of duty prior to adjudication order passed by the Additional Commissioner is treated as payment under protest, the protest ceases to exist once the Additional Commissioner's order dated 19.06.2017 was not challenged by the department. Therefore, in view of the Hon'ble Supreme Court's order in the case of Dena Snuff (P) Ltd. v. CCE, Chandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudication - Even if said payment is treated as protest payment, protest ceases to exist once Additional Commissioner's Order set aside by Commissioner (Appeals) on 26-3. 2004 - Relevant date for computing period of one year would be 26-3-2004 - Refund time barred - Revenue's appeal allowed - Section 11B of Central Excise Act, 1944. - The Hon'ble Supreme Court in para 5 of its judgment in the case of Dena Snuff (P) Ltd. (2003 (157) B.LT. 500 (S.C.)] after considering the judgment in case of Mafatlal Industries Ltd. (1997 (89) E.LT. 247 (S.C.)] has held that when the duty has been paid under protest, the period of limitation would start to run from the date of the final decision in the assessee's own case. [para 4] 4.3.3 The Hon'ble Tribunal South Zonal Bench, Chennai in the case of REDINGTON INDIA LTD Vs Commissioner of Customs Chennai [2011 (269) E.L.T. 233 (Tri. - Chennai)) held as under: Refund - Limitation - Protest payment - Duty paid under protest on 27-12-2006 - Dispute decided on merits on 24-5-2007 and refund claim filed on 21-2-2008 - Refund denied as barred by limitation because protest vacated when assessment finally decided - Fourth proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as well as discussion made in the foregoing paras, I hold that the impugned order passed by the Assistant Commissioner, CGST & Central Excise, Division-I Kanpur rejecting refund to the appellant is legal & proper and liable to be sustainable. 5. In view of the above, I upheld the impugned order dated 26.11.2020 of the adjudicating authority & reject the appeal filed by the appellant." 2.1 The Appellant have during the course of investigation deposited certain amount by two Challans dated 03.06.2014 & 09.06.2014. After completion of the investigation a show cause notice dated 23.05.2017 was issued to the Appellant but the proceedings were dropped by the first adjudicating authority namely the Additional Commissioner, Central Excise, Kanpur vide Order-In-Original No.20/ADC/CEX/2017 dated 19.06.2017. 2.2 Subsequent to the dropping of the proceedings so initiated, Appellant filed a refund claim on 31.01.2020 seeking refund of Rs.5 lakhs deposited by them vide above referred challans dated 03.06.2014 and 09.06.2014 during the course of investigation. 2.3 After scrutiny of the refund claim, a show cause notice dated 22.05.2020 was issued to the Appellant proposing to reject the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) .....; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) ......; (d) the duty of excise and interest, if any paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) ......; (f) .......: Provided ...... (3) ...... (4) ....... (5) ...... 19[Explanation.-- For the purposes of this section,-- (A) "refund" .......; (B) "relevant date" means,-- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to be considered in this case are as follows : (1) Whether the deposits made through challans which have not been utilized towards payment of duty can be claimed as refund under Section 11B; (2) Whether in such cases, the provisions of Section 11B apply in toto or otherwise; and (3) What is the relevant date of reckoning the time limit in such cases? 11. As can be seen from clause (b) to proviso to sub-section (2) of Section 11B unspent advance deposits lying in balance in applicant's current account are covered by Section 11B. Once they are covered by Section 11B it is not open for anyone to pick and choose which portion of Section 11B applies to them and which does not. The entire provisions of Section 11B apply in the absence of any specific clause indicating otherwise. The next question is the relevant date for reckoning the time limit in such cases, which has been defined in the explanation to Section 11B. Clause (f) of this explanation covers the present case i.e., "in any other case, the date of payment of duty". Since the date of payment of duty has yet to begun in case where an amount has been deposited only in the account current but has not been utilized towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944, which applies only for refund of duty. He has, therefore, recorded that the provisions of Section 11BB of the Central Excise Act, 1944 granting interest for delayed refund of duty is not attracted in the present case. 3. After hearing, perusal of the records and relevant provisions as mentioned above, I do not find any legal infirmity in the Order passed by the Commissioner (Appeals) so far as the applicability of Rule 9(1A) and Rule 173G(1A) of the Central Excise Rules, 1944, is concerned. The appeal filed by the appellant is, therefore, dismissed." * Jay Shree Tea & Industries Ltd. - 2005 (190) E.L.T. 106 (Tri. - Kolkata) '3. Ld. JDR supports the impugned order. A clarification was issued by the Board regarding refund of balance in PLA Account. The matter was examined in consultation with the Ministry of Law and it was advised by the Ministry that the amount in question may therefore be refunded to the applicant. CBE & CE No. 202/24/72-CX.6, dated 6-1-1973. The PLA is deposited by the party is adjusted from time to time and as such an amount in PLA which remain unutilized belonging to the party for which the Department has no claim and the limitation has no appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -utilised deposit amount of Rs. 14,251/- to the credit of the appellants and when the appellants made an application for refund of such amount by virtue of exemption of duty on Tea & Tea Waste w.e.f. 1-3-2003, 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 Act, 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 6-1-1978, 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 in the case of Jay Shree Tea & Industries Ltd. v. Commissioner of Central Excise, Kolkata reported in 2005 (190) E.L.T. 106 (Tri. - Kolkata). 4. On the basis of the above decision, the appellants cannot be denied of justice and cannot be un-equally treated under law. It is judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
