9911796707
TMI Blog2015 (3) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... tion?" 2. The facts briefly are that the appellant had paid excise duty during the period between 22.2.1999 and 28.8.1999. The amounts were deposited towards excise duty payable. The adjudication order for the relevant period was made on 23.6.2004 pursuant to a show cause notice. Thereafter, the assessee/appellant applied for refund of the amount deposited in 1999 aggregating to Rs. 4,12,590/-. It was contended that the amounts had been paid under protest and under directions of the audit party. The refund claimed was processed and allowed by an order dated 3.12.2004. The Assistant Commissioner while allowing the refund application, inter alia, held as follows: - "I have carefully examined the refund claim of the applicant. The initial is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund was validly made. It was submitted that the amounts were in fact paid as a consequence of directions of the concerned officials and, therefore, were not voluntary. The assessee wished to rely upon second proviso of Section 11B of the Central Excise Act which provides that limitation period for filing the refund application would not apply where the duty is paid under protest. The assessee's contentions were, however, overruled by the Commissioner (Appeals): - "11.1 The Respondent has contended that in the Show cause notice dated 27.09.2001 it has been clearly acknowledged that the they had deposited the sum of Rs. 4,12,590/- on the direction of the audit objections. I have examined this plea of the Respondent and find it to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) met with the same fate; the CESTAT held that the refund application was in fact time barred. 5. Learned counsel for the assessee submits that in the facts of this case, the Commissioner (Appeals) and subsequently the CESTAT fell into error in holding that the main provision of Section 11B (1) applied and, therefore, the refund application was time barred. In fact the sum was due only when the show cause notice dated 27.09.2001 was made and not earlier. The CESTAT in its order dated 28.11.2008 rejected the appeal holding that there was no infirmity in the order of the Commissioner (Appeals). Section 11B of the Central Excise Act at the relevant time read as follows: - "11B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be credited to the Fund : Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof; (f) in any other case, the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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