Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2015 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (12) TMI 233 - HC - Central ExciseDenial of refund claim - Duty paid under protest - Concessional rate of duty - Bar of limitation - Held that:- First appellate authority has given a categorical finding that the duty was paid under protest. We also affirm this finding upon a perusal of the letter dated 21.01.1998 which has been considered by the first appellate authority as well as the letter dated 10.02.1998 and the challan dated 04.02.1998 through which the duty was deposited. - finding of the first appellate authority has not been challenged by the Department in any further appeal and, therefore, this finding is binding upon them. We are also of the opinion that when the appellant filed an appeal against the duty levied, it means that the deposit was made under protest. Once the deposit of duty was made under protest, the second proviso of Section 11-B of the Act comes into operation, namely, that the period of limitation of six months would not apply to a claim of refund. Consequently, the finding of all the authorities that the application of the appellant was barred by limitation, is patently erroneous. - judgment of the Tribunal was delivered on 22.01.1999. The application was filed on 31.08.1999 within a period of seven months which, in our opinion, is a reasonable period. The application for refund does not become barred by time. Tribunal committed a manifest error in non-suiting the appellant's claim on the sole ground that the appellant was only a buyer and, therefore, was not entitled to claim a refund of the duty. This finding is patently perverse. Section 11-B of the Act provides that any person can make an application for refund of duty. Further, in the instant case, the appellant is not only a purchaser but is also a manufacturer of fertilizer and was entitled to purchase Naphtha under the notification issued under the Central Excise Act, 1944 at a concessional rate of duty. Since, the appellant was denied the requisite forms/ certificate and deposited the duty under protest, he was entitled to claim a refund. - Impugned order is set aside - Decided in favour of assessee.
|