Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2022 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 102 - AT - Central ExciseRefund claim - Violation of principles of natural justice or not - absence of any proof regarding non-subsummation of the impugned amount by the party - invocation of time limitation under section 11B of Central Excise Act, 1944 - HELD THAT:- There is no denial to the fact that the amount, the refund whereof has been filed way back in the year 2018 was the amount deposited in the year 2016 during an investigation about proposed duty demand for the clearances made by the appellant in the period 2009-2011. The question of passing of the burden of an amount 5 years prior the amount was deposited is not at all possible. There was no need for the Reviewing Authority to take altogether different ground that too the one which is apparently not sustainable. The issue regarding application of principles of unjust enrichment to refund of pre-deposit is no more res integra. There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the substantial question of law against the Revenue and in favour of the assessee. Invocation of time bar of section 11 (B) of Central Excise Act, 1994 - HELD THAT:- It is observed that amount, the refund whereof was claimed, is an amount which was deposited by the appellant during the stage of investigation when impugned demand was proposed. Once the said proposal has failed to attain finality i.e. when the duty demand has been set aside, the aforesaid was not the deposit with reference to duty but was deposit under protest. Since it is not the amount of duty Section 11 (B) of CEA, 1944 and the time bar therein cannot be invoked - thus, the entire amount of Rs.6,27,728/- is to be refunded to the appellant alongwith interest as already been ordered by Commissioner (Appeals) in order dated 16.07.2019. Otherwise also it is observed that the Reviewing Authority has not challenged the findings as far as the non-applicability of section 11 B of Central Excise Act, 1944 and the time bar therein is concerned. The Commissioner (Appeals) has allowed this appeal by way of remand in terms of section 35 A, Commissioner (Appeals) has the power, after making proper inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or other appealed against. The provision is abundantly clear that no power of remand has been vested by the statute in Commissioner (Appeals). Seen from this aspect also the order of Commissioner (Appeals) is not sustainable - appeal allowed - decided in favor of appellant.
|