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TMI Blog2024 (10) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... uring Co. [ 2002 (7) TMI 111 - HIGH COURT OF JUDICATURE AT BOMBAY ] has held that ' we see no reason to interfere with the finding given by the adjudicating authority in rejecting the Petitioners claim as time-barred. Since the payments made during the relevant period are not under protest and the refund claim is beyond the period prescribed under the Act, the adjudicating authority is justified in rejecting the claim as time-barred.' There are no merits in these appeals - appeal dismissed. - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Aalok Arora , Advocate for the Appellants Shri Santosh Kumar , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : These two appeals are directed against Order-in-Appeal No.NOI-EXCUS-002-APP-830 831/2020-21 dated 06/11/2020 passed by Commissioner (Appeals) Central Goods Services Tax, Noida. By the impugned order, Commissioner (Appeals) has upheld the rejection of the refund claim filed by the appellant, claiming refund of certain amount which was debited by the appellant in response of audit objection raised. 2.1 Appellants were engaged in manufacture of V.P. Sugar and Molasses. They are also availing benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows:- M/s Yadu Sugar Ltd. Final Order No.70776 of 2019 dated 14.03.2019 (Tri.-All.); M/s Ramco Cements Ltd. 2017 (5) GSTL 105 (Tri.- Chennai); Mundra Ports Special Economic Zone Ltd. 2015 (39) STR 726 (Guj); Dhampur Sugar Mills Ltd. 2012 (276) ELT 528 (Tri.-Del.); DSCL Sugar Ltd. 2015 (322) ELT 769 (SC); Accordingly, this reversal could not have been held to be proper and correct and the refund claims may be allowed. Appeals be allowed. 3.3 Learned Authorized Representative reiterates the findings recorded in the orders of the lower authorities. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For upholding the order rejecting the refund claim, Commissioner (Appeals) has in the impugned order observed as follows:- 7. I have carefully gone through the issues involved the submissions made in the appeals I find that the appellant in their grounds of appeal in both the appeals has admitted that the reversal in appeal no. 294/CE/NOIDA/APPL/ GBN/2020-21 dated 26.8.2020 were made on 1.5.2013, 20.3.2014, 1.4.2013, 1.4.2015 4.5.2017 in appeal no. 296/CE/NOIDA/APPL/GBN/2020-21 dated 27.8.2020 reversals were done on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot indicate any payment was made under protest. I also find that during the relevant period the assessment on monthly basis were done by the appellant themselves in the form of SELF- ASSESSMENT in ER-1. The appellant has not produced copies of such self- assessment made by them for the relevant period since there is no indication of any provisional assessment made by them I find that the self-assessments were final. Also, there is no provision under the Central Excise Act, 1944 Rules made thereunder for the relevant period to enable them to pay Central Excise duty under protest as such their claim to that affect is only an empty formality. 10. On this issue, I find that once the assessment is final there is no challenge to that assessment, it cannot be re- opened by way of a refund claim which was the position of law decided by the Hon'ble Supreme Court in the case of Flock India (P) Ltd. in 2000, in BPL Telecom Ltd. in 2015 which was again re-affirmed by three judges bench of the Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE reported in [2019 (368) ELT 216]. In the case of ITC Ltd. the Hon'ble Supreme Court categorically held that unless an assessment order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved thereby. The expression Any person‟ is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re- assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self- assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against any order which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such assessment/order on the ground of a decision in another person‟s case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. 4.5 In view of the above decisions, I find that the submissions made by the appellant relying upon various decisions rendered in respect of some other parties or in their own case cannot be the ground for claiming the refund of amount paid by the appellant in these proceedings. 4.6 I also find that both the authorities bellow have categorically concluded that the amounts were paid by the appellants, they deposited these amounts for the closer of the proceedings that would have been initiated against them for recovery of these amounts in response of the audit objection raised. Taking note of such deposit these proceedings were initiated against the appellants. Accordingly, the claim made by the appellants that amounts were paid in protest also do not have any merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority in not refunding the amount of Rs. 2,64,327/-. From this position, it is also clear that even, according to the Department, if the petitioner would have claimed the refund well within time, the petitioner would have been entitled for the same. The claim which is made within time i.e. of Rs. 32,940/- definitely has to be ordered to be refunded to the petitioner. 4.8 In case of Sterlite Industries [2009 (238) E.L.T. 240 (Mad.)] Hon ble Madras High Court observed as follows: 5. As already stated, the appellant filed the bill of entry and allowed the proper officer to assess the same on the value stated in the invoice and declared in the Bill of Entry. After three or four months, the appellant approached the appellate authority stating that he was entitled to certain reductions by way of quality discount and dispatch earnings, which has not been considered by the proper officer. That was righty rejected by the first appellate authority, which has been confirmed by the Tribunal on the ground that the bill of entry has been assessed finally and the appellant has not demurred anything about the assessment and claimed any deduction but accepted the assessment and cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X
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