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TMI Blog2013 (12) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for SSI exemption under Notification no.08/2003-CE dt. 01/03/2003 in 2003-04. As the Central Excise duty has been imposed on refined oils in the budget 2003, vide Notification No.06/2003-CE dt. 01/03/2003, the appellant is not eligible to avail the SSI exemption as per Notification No.08/2003-CE dt. 01/03/2003 which has been amended by Notification No.30/2003-CE dt. 01/04/2003. As per para 3(A) of the Notification No.8/2003 as amended, for the purposes of determining the aggregate value of clearances of all excisable goods for home consumption, mentioned in clause (vii) of para 2 of the notification, the following clearances, viz. (a) The clearances of excisable goods without payment of duty (i) to a unit in a free trade zone; (ii) to a unit in special economic zone; (iii) to a 100% EOU; (iv) to a unit in an electronic hardware technology park or software technology park; (v) supplied to the United Nations or International Organisations for their official use or supplied to projects funded by them on which exemption of duty is available under notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue) No.108/95-CE dt. 28/08/1995. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had clearly stated that the demand is ultra vires and the payment of duty made by them under protest should be refunded to them. The letter also said that payment was made under protest to have a smooth relationship between the assessee and Department. In their letter, they also demanded that first it should be decided by the Department whether the demand issued by the Superintendent was proper, legal and lawful and only thereafter the question of appropriation would arise. He relies upon the decision of the Hon'ble Supreme Court in the case of Metal Forgings Vs. UOI [2012(146) ELT 241 (SC)] to submit that without issue of a show-cause notice, no demand can be confirmed. 3. Learned AR on behalf of the Revenue submits that in this case, the appellant was informed very clearly that they were not eligible for the benefit of SSI exemption and after the correspondence between the party and the Department only, the appellant made the payment under protest. The question before the Department was whether the payment made under protest was liable to be paid or not and the issue before the lower authorities was whether the appellant was eligible for the benefit. The grievance of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des. After the year 2003 budget, refined oils were brought into the Central Excise net and consequently the appellant engaged in the manufacture of refined oil became liable to pay Central Excise duty. However, the products were covered by Notification No.8/2003 which provides for exemption to SSI units. Upto 31/03/2003, the assessee availed exemption. However, Notification No.8/2003 was also amended by Notification No.30/2003-CE dt. 01/04/2003. According to para 3(A) of the Notification, for the purpose of determining the aggregate value of clearances of all excisable goods for home consumption, certain clearances could be excluded. When the clearances of the assessee was calculated on this basis, the value of clearances during the preceding financial year was found to be about Rs.29.9 crores rendering them ineligible for the exemption. From 01/05/2003, refined oil started to attract duty of Re.1 per kg. and the calculation of applicability of SSI exemption does not arise. However, the appellant did not pay any duty in the month of April 2003 and claimed the benefit of SSI exemption by writing a letter dt. 04/04/2003. On 07/11/2003, after getting the details of clearances by corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was brought to our notice. However, we take note of the fact that one place where the payment under protest finds its place is in the Explanation to Section 11B(1) of Central Excise Act, 1944. This proviso provides that the limitation of one year was not applicable where any duty has been paid under protest. This is contrary to the position existing under erstwhile Central Excise Rules, 1944. Earlier, there was a specific rule for payment under protest under Rule 233 of Central Excise Rules and this rule besides providing for payment under protest also gave the procedure to be followed briefly. However no such provisions exist under the law and either side could not bring any such provision to our notice. 9. The question now arises whether in this case a show-cause notice should have been issued for appropriation of the amount paid by the appellant under protest. Section 11A of Central Excise Act 1944 is applicable for recovery of duties not levied or not paid or short-levied or short paid or erroneously refunded. It is not the case of either side that there was a short-levy, short payment or non-levy or non-payment or erroneous refund. Therefore, provisions of Section 11A(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne year, the issue attains finality for both sides. Therefore in this case, once the appellant paid the amount and Department did not issue notice, the matter should have ended there. Even then, the original adjudicating authority has chosen to adjudicate the matter only for the purpose of vacating the protest which was the requirement when the rules were different. The appellants after making payment, wanted to convert it into a dispute and have asked the Superintendent concerned to issue a show-cause notice to them. The law does not contemplate this. Therefore, in terms of statute and in the eyes of statute and in our view, the proceedings initiated by the Department were not required at all for appropriation and vacating the protest. Since payment has attained finality after one year, appeal has no merit. 10. Our observation above would show that we need not deal with other submissions at all to decide the issue before us. However, the issue is examined in academic interest. On an examination of the correspondence between the appellant and the assessee, it is noticed that it cannot be the case of the appellant that they were not aware of the statutory provisions. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by them on 06/12/2004 and during the personal hearing they handed over another letter. In this letter dt. 04/12/2004, the only claim made is that they have sought SSI exemption and the Department should deny it by issue of a show-cause notice and demand a specific amount. The letter issued by the Superintendent required them to pay the amount is not a show-cause notice and therefore the action is illegal. They have also submitted that the Superintendent has no authority to make assessment without following the act, rules and procedures and this can be done only after giving an opportunity to the appellants to defend. As we have already observed, the system of an assessment and payment of duty is no longer in existence. It is self-assessment. Even though, after the Superintendent informed the appellants and when the appellants made the payment under protest, the Assistant Commissioner has given an opportunity to the appellant to present the case and in this opportunity, the appellants are seeking a show-cause notice to be issued with copies of notifications and other documents without specifying what documents. They also did not explain what is the factor or what is the law wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons herein below. 12.2. As regards the decision in the case of Metal Forgings Vs. UOI [2002(146) ELT 241 (SC)] relied upon by the learned counsel, we take note of the fact that the issue arose as a result of an order made by the Assistant Collector on 21/01/1976 when the statutory provisions were totally different and the learned advocate also could not show that the legal provisions were similar during the relevant period when compared to legal provisions during the disputed period. Another factor that has to be taken into account is that during the relevant period the classification list was required to be approved by the Assistant Collector and in the present case there was no classification list to be filed or approved which is a major difference between the situation then and now. In 1976, to claim an exemption, a classification list was to be filed and approved & if a classification list could not be approved as submitted, show-cause notice was required. Now there is no classification list concept at all. Therefore, this decision is not applicable. 12.3. In the case of Indian Oil Corporation Ltd. Vs. CCE, Vadodara [2003(157) ELT 344 (Tri. Del.)], an amount of Rs.5.16 crores ..... X X X X Extracts X X X X X X X X Extracts X X X X
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