TMI Blog2014 (5) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... June 2001 and part of the payments were made in June and September 2002 and in July, 2003. The refund claim was filed only on 19-5-2008, that is about 3 years after the decision of the Tribunal and more than 5 years after the payment of duty. Thus the refund claim has been filed much after the stipulated period of one year under section 11B and hence they are clearly time-barred - Thus in respect of refunds which became payable, this time limit would apply. In the present case the claim was filed only on 19-5-2008 and the amended provisions would certainly apply in respect of such claims. Viewed from this angle also, the refund claim is clearly time-barred. Unjust enrichment - Held that:- Refund amount due was not reflected in the books of account of HPCL as claims receivable. This implies that the duty paid was shown as current expenditure and formed part of the Profit and Loss account of the assessee. Thus, if the claimant himself has treated the refund amount due as expenditure and not as “claims receivable”, the claimant cannot said to have passed the test of unjust enrichment. This is the settled position in law. The appellant has also contended that the appellant's goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Central Excise Appeal No. 40/2006 which was dismissed by the hon'ble High Court vide order dated 28-2-2008. Thereafter, M/s HPCL filed the refund claim on 19-5-2008. On 24-12-2008, the jurisdictional Asst. Commissioner of Central Excise wrote to M/s HPCL to furnish evidence that the incidence of duty was not passed on and was borne by the claimant himself. The appellant replied that the principle of unjust enrichment would not apply as the goods were under the Administered Price Mechanism and the price had no nexus to the cost of production. Thereafter on 4-2-2009, a show cause notice was issued to the appellant proposing to reject the refund claim on account of time bar in as much as the refund claim was filed much after the period of one year from the date of CESTAT order dated 15-7-2005 and vide order dated 9-4-2009, the refund claim was rejected on account of time bar. M/s HPCL challenged the said decision before the lower appellate authority and the lower appellate authority held that the payment of duty during the period of dispute should be held as under protest and therefore, the question of time bar would not apply. However, he rejected the refund claim on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund of the amount to M/s HPCL by setting aside the impugned order. 4. The ld. Commissioner (AR) appearing for the Revenue made the following submission:- (i) The ld. Lower appellate authority erred in concluding that the payment of duty was under protest and hence the time bar would not apply. A protest can said to remain/exist only upto the point of time when the original authority decides the issue. Once the original adjudicating authority decides the matter, there cannot be any protest thereafter. In the present case the duty demand was confirmed vide order No. 3/2002 dated 30-1-2002. Therefore, there cannot be any protest after that date. He relies on the decision of this Tribunal in the case of Evershine Marbles Exporters P. Ltd. [2009 (240) ELT 239] in this regard. (ii) The cause of action for grant of refund arose with the decision of the Tribunal dated 15-7-2005. Therefore, the time limit should be computed from this date. In the present case, the refund claim was filed by HPCL only on 19-5-2008, almost 3 years after the cause of action arose and hence the claim is grossly time-barred. He relies on the decision of the Apex Court in the case of Dena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them should be considered as payment under protest and reliance has been placed on the decisions of the Apex Court in the Mafatlal Industries case. It will be useful to see what the Apex Court said in the said case with regard to this issue. Paragraphs 84 to 86 of the said decision is reproduced verbatim below:- 84. It was then submitted that Rule 233B which prescribes the procedure to be followed in cases where duty is paid under protest requires the assessee to state the grounds for payment of duty under protest and that it may well happen that the authority to whom the letter of protest is submitted may refuse to record it, if he is not satisfied with the grounds of protest. In our opinion, the said apprehension is not well-founded. Sub-rules (1), (2) and (3) of Rule 233B read as follows : RULE 233B. Procedure to be followed in cases where duty is paid under protest. - (1) Where an assessee desires to pay duty under protest he shall deliver to the proper officer a letter to this effect and give grounds for payment of the duty under protest. (2) On receipt of the said letter, the proper officer shall give an acknowledgement to it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as payment under protest at all and we hold accordingly. 6.3 There is another reason to come to this conclusion. In the J.K.Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of U.P. and Ors. [1961 AIR 1170], the hon'ble Apex Court laid down the principle of statutory interpretation as follows: The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. Applying this rule of construction, in case of a conflict between a specific provision and a general provision,, the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision. In the present case, it is an admitted position that the appellant HPCL did not follow the procedure for payment of duty under protest prescribed in rule 233B of the Central Excise Rules, 1944 or other provisions prescribed at the relevant time. Having failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 15-7-2005 and the one year period expired on 15-7-2006 whereas the refund claim was filed only on 19-5-2008. The appellant's contention that the department had challenged the said decision of the Tribunal before the Bombay High Court and the high court dismissed the appeal of the department on 19-5-2008 is not acceptable as the refund claim first became due on account of the Tribunal decision and not on account of the Bombay High Court decision. Further law itself was amended to provide that in a situation where the duty becomes payable as a consequence of the judgment, decree, order or direction of the appellate authority. Appellate Tribunal or any court of, the time limit has to be computed from the date of judgment, decree or order and this amendment came into force on 11-5-2007. Thus in respect of refunds which became payable, this time limit would apply. In the present case the claim was filed only on 19-5-2008 and the amended provisions would certainly apply in respect of such claims. Viewed from this angle also, the refund claim is clearly time-barred. Thus there is merit in the Revenue's contention that the appellate authority erred in holding that the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf and that sub-section (3) of Section 11B, before its amendment in 1991, was also in identical terms. But, Sri Nariman says, sub-section (3) of Section 11B has now been dropped; there is no corresponding provision in Section 11B as it now stands, which means, says the counsel, that even a refund claim arising as a result of an appellate order or an order of a court has also got to be made under and in accordance with sub-sections (1) and (2) of Section 11B and will be disposed of in terms of sub-section (2) of the said section, as amended in 1991. This consequence, learned counsel says, is unjust, unreasonable and arbitrary. There is no reason why a person who becomes entitled to refund of duty as a result of appellate or court order should also be made to apply and satisfy all the requirements of sub-sections (1) and (2) of Section 11B (amended) when he is entitled to such refund as a matter of right. Sri Nariman submits that if a manufacturer/assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it at competitive prices - the urge to grow. A favourable decision does not merely mean refund; it has a beneficial effect for the subsequent period as well. It is incorrect to suggest that the disputes regarding classification, valuation and claims for exemptions are fought only for refund; it is for more substantial reasons, though the prospect of refund is certainly an added attraction. It may, therefore, be not entirely right to say that the prospect of not getting the refund would dissuade the manufacturers from agitating the questions of exigibility, classification, approval of price lists or the benefit of exemption notifications. The dis-incentive, if any, would not be significant. In this context, it would be relevant to point out that the position was no different under Rule 11, or for that matter Section 11B, prior to its amendment in 1991. Sub-rules (3) and (4) of Rule 11 (as it obtained between August 6, 1977 and November 17, 1980) read together indicate that even a claim for refund arising as a result of an appellate or other order of a superior court/authority was within the purview of the said rule though treated differently. The same position continued under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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