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TMI Blog2024 (10) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... se are the case where refund has arisen as a consequence of decision in the appeal etc. As per proviso to Section 11B (2) the amount of unspent deposit lying as balance in the Appellant s account current is to be refunded to the Appellant without being credited to the consumer welfare fund. Thus such an amount can never be hit by the provisions of unjust-enrichment in terms of specific exemption provided in respect of such claims. There are no merits in the impugned order - appeal allowed. - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Amit Awasthi, Advocate for the Appellant Shri Santosh Kumar, Authorized Representative for the Respondent ORDER This appeal is directed against the Order-In-Appeal No. 224-CE-Alld-2021, dated-09/08/2021 passed by Commissioner (Appeals) CGST Central Excise, Allahabad. By the impugned order Commissioner (Appeals) has held as under:- 4.2 I have carefully considered the rival submissions. In this case the order of the Additional Commissioner, Central Excise, Kanpur in the appellant's favour had been passed on 19.06.2017 and it is not under dispute that the refund claim filed on 31.01.2020 was beyond the limitation period of one year prescribed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n four years hence, the same is clearly time-bar . 4.3.1 In the case of Collector of Central Excise, Chandigarh vs. Doaba Co-operative Sugar Mills 1988 (37) E.L.T. 478 (S.C.), the Hon'ble Apex Court held as under:- 6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail . 4.3.2 The Hon'ble Tribunal Principal Bench, New Delhi in the case of Commr of CEX, Jaipur-II Vs M/s Evershine Marbles Exporters Pvt Ltd | 2009 (240) E.L.T. 239 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim within one year from the date of Additional Commissioner's order by which the dispute on demand of duty was settled. 4.4 I observe that the appellant has relied upon following judgments of the Tribunals: (i) M/s G.S Radiators Ltd Vs CCE Ludhiana (2005 (179)ELT 222 Tribunal -Del)] (ii) M/s Laxmi Board Paper Mills Ltd Vs CCE Mumbai (2007(208) ELT 384 (Tr- Mum)) (iii) M/s Bajaj Auto Ltd Vs CCE Aurangabad (2007(213) ELT, 577 (Tri-Mum) (iv) M/s Nissan Copper Ltd Vs CCE Vapi (2015(329) ELT 843 (Tri-Ahmd)) (v) M/s Parle Agro Pvt Ltd Vs CCE Noida (2018(360) ELT 1005 (Tri-Alld)] I observe that there are various contrary judgment of the Tribunal in case of deciding time bar issue if amount has been deposited under protest. However, I observe that in recent judgement dated 03.03.2020 the Hon'ble Tribunal Ahmedabad in the case of Rachna Art Prints Pvt Ltd vs Surat-1 held that the protest continued till the date of remand order. The refund itself has arisen after the tribunal has passed remand order dated 17.10.2011, which is relevant date for the refund under section 11B. After this date of remand order under protest if any, stand vacated, therefore, time limit of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the submissions made in the appeal and during the course of argument. 4.2 The entire issue for my consideration is in respect of admissibility of refund claim in terms of Section 11B of the Central Excise Act, 1944. Undisputedly the Appellant have deposited a sum of Rs 5,00,000/- vide challans referred earlier during the course of investigation under protest. 4.3 As the proceedings were dropped by the Original Authority, Appellant claimed this amount as refund which have been rejected on the ground of limitation and also on the ground of unjust enrichment. 4.4 The amount deposited by the Appellant by the challans continued to remain as deposited throughout. This amount was never appropriated as duty as the proceedings initiated against the Appellant were dropped by the Adjudicating Authority. The nature of such deposit was like an amount lying unutilized in the account current of the Appellant. Section 11B of the act provide as under:- 11B. Claim for refund of 2[duty and interest, if any, paid on such duty].-- (1) (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (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 5-A, 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. 4.5 From the perusal of the above section it is evident that amount claimed as refund which is attributable to unutilized balance in the account current could never have been hit by the limitation clause or clause of unjust enrichment. In the case of Deccan Shoppe Pvt. Ltd. [2020 (37) G.S.T.L. 185 (Tri. - Hyd.)] Hyder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44. The Ld. Commissioner (Appeals) in his order has considered the provisions of Rule 9(1A) read with Rule 173G(1A) of the Central Excise Rules, 1944 which provides for withdrawal of amount from PLA by the Commissioner and the said power of Commissioner has been delegated to Assistant/Deputy Commissioner of Central Excise. The contentions of the Ld. Consultant for the appellant is that Section 11B of Central Excise Act, 1944 applies for refund of duty. This is not disputed by the Commissioner (Appeals). However, referring to clause (b) of the proviso to sub-section (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 Rules 9(1A) and 173G(1A) of the said Rules, therefore, such refund would be squarely covered under the said Rules and not under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e latter case, however, when an amount has been deposited to be appropriated thereafter towards duty which may fall due there having no appropriation, the property in money does not pass to the Government unless the goods are cleared and the duty is levied. In present case the money deposited in PLA cannot be utilised due to withdrawal of Central Excise duty on Package Tea and Tea including Tea waste. The money belongs to the appellant over which the Department has no claim. The appeal deserves to be allowed. I therefore allow the appeal with consequential benefit to the Appellant. Bijalimoni Tea Estate - 2007 (215) E.L.T. 63 (Tri. - Kolkata) Ld. Counsel appearing for the appellants has submitted that there is only limited issue in these appeals to examine whether un-utilised deposit in PLA can be refunded to the depositor or not and whether such deposit is covered by Section 11B of the Central Excise Act, 1944. 2. Facts of the case throws light that the appellants had made deposit of Rs. 50,000/- (Rupees Fifty thousand only) on 31-12-2002 in United Bank of India (UBI), Siliguri towards discharge of the duty payable for removal of excisable goods. On 28-2-2003, there was an un-util ..... X X X X Extracts X X X X X X X X Extracts X X X X
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