Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2021 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (8) TMI 693 - AT - Central ExciseRefund claim of the amount reversed under protest - Rejection as the amount was paid by them voluntarily - the amount to be treated as deposit or not - HELD THAT:- It is admitted fact that although audit team raised objection and the respondent reversed the amount along with interest and protest letter was sent by the respondent to the Department but no show cause notice was issued to the respondent for appropriation of amount reversed by the respondent. The amount reversed by the respondent can only be treated as a ‘deposit’ and as no assessment order has been passed, therefore, the decision of Hon’ble Supreme Court in the case of PRIYA BLUE INDUSTRIES LTD. VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) [2004 (9) TMI 105 - SUPREME COURT] and ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] are not applicable to the facts of this case. These judgments held that the process of refund is only a mechanical process based on an assessment already made and the officer sanctioning refund cannot revise the assessment already made. He can sanction refund only if it flows from the assessment. Therefore, only when an assessment (including self assessment) is made and consequently an amount is paid, refund cannot be sanctioned unless the assessment is appealed against and modified in appeal. Unlike in refunds, the procedure for recovering short paid duty, does not require the original assessment to be challenged before the Appellate Authority. Therefore, if there is a short payment of duty, the only option for the Revenue is to follow the procedure prescribed under section 11A to recover such short paid duty. Even if the assessee pays the duty when pointed out by the Audit Party or Preventive team, such a payment of duty is only a deposit because any report or conversation with audit or preventive team is not a method of recovering short paid duty. Thereafter, a Show Cause Notice under Section 11A must be issued demanding the duty and proposing to appropriate the amount already deposited during audit or preventive checks towards this amount. This has not been done in this case. The respondent is entitled for refund claim of the amount already reversed during the course of audit - there are no infirmity in the impugned order and any merit in the appeal filed by the Revenue and accordingly the same is dismissed.
|