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2015 (3) TMI 658 - DELHI HIGH COURT

2015 (3) TMI 658 - DELHI HIGH COURT - 2015 (322) E.L.T. 215 (Del.) - Denial of refund claim - deposit under protest - Whether Customs, Excise and Service Tax Appellate Tribunal was right in holding that the refund claimed by the appellant was governed by provisions of Section 11B of the Central Excise Act, 1944 and was barred by limitation - Held that:- The occasion for the Commissioner (Appeals) to go into the matter was because the Assistant Commissioner, i.e., the authority of the first insta .....

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ver, the Commissioner went into the materials and rendered the finding of fact. That finding of fact has not been upset by the CESTAT. The assessee/appellant’s attempt to have that order rectified in miscellaneous proceedings too was unsuccessful, as is evident from the further order dated 4.8.2010 of the CESTAT. In these circumstances, this Court is of the opinion that in fact no question of law arises in the facts of this case. - Decided against assessee. - CEAC 22/2010 - Dated:- 4-3-2015 - S. .....

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ion? 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 ₹ 4,12,590/-. It was contended that the amounts had been paid under protest and under directions of the audit part .....

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not includable. Further, the Order-in-Original dated 23.6.04 has been accepted by the Department. An Affidavit dated 25.11.04 from Shri Rajiv Chanana, Proprietor of M/s Mahalakshmi Cables Industries confirmed that the refund amount in question was paid by the applicant and that they have not issued any debit or credit notes in respect of the duty for which the refund application pertains. Further, the accounts of the applicant have been audited by Central Excise Officers even after 1999 but no s .....

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, and vide order dated 2.12.2005, the Commissioner directed the Assistant Commissioner to prefer an appeal before the Commissioner (Appeals) against the refund order. In the course of the appeal, the assessee preferred cross objections contending that 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 Cen .....

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be factually incorrect. It is observed that contrary to the plea of the Respondent, there was no direction issued. In fact the show cause notice issued to the Respondent mentions with specific reference to the audit objection itself as follows."Accordingly the party voluntarily paid ₹ 96,256/- [Emphasis supplied] .Thus, it is clear that the payment made by the Respondent was voluntary. The copy of letter dated 13.07.2001 relied upon by the Respondent [and referred to during personal h .....

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Therefore, it is incorrect to say that "the deposit" of the above sum of ₹ 4,12,590/- was only against the direction of the Department and that the issue was settled only after the Order-in-original Number 100/04 -05 dated 03.12.2005. Thus, I hold that the payment was made voluntarily by the Respondent as duty of excise and was subject to the provisions of Section 11B of the Central Excise Act, 1944. It was not in the nature of a mere ''deposit as contended by the Respon .....

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e 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. Claim for refund of duty - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Exc .....

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plication for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act : Provided further that the limitation of six months year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, o .....

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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 r .....

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ent may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of th .....

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resolution moved within 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 de .....

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; (B) ―relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air,the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods .....

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removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official 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 r .....

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