TMI Blog2010 (9) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... sue involved in both these appeals is inter-related, they are being disposed off by a common order. For brevity sake, the facts are taken from Appeal No. E/1209/2002 Appeal No. E/1243/2004 is merely disposed the appeal filed by the Revenue following the order in Appeal No. E/1209/2002. 2. The relevant facts that arise for consideration are that the assessee herein filed refund claim for ₹ 1,72,053/- being the amount of duty paid under protest vide PLA entry No. 42/23-10-2000. The assessee claimed that they cleared all their goods to the depot in Bangalore by paying the duty based on assessable value declared in the price declaration as applicable to a particular region and the goods are further sold/cleared from Bangalore depot to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original that rejected the refund claim of ₹ 99,418/- on the following findings :- The appellant s contentions is that they paid differential duty of ₹ 1,72,053/- on 23-10-2000 vide PLA entry No. 42/23-10-2000. As they felt that this payment was not necessary as they had already paid differential duty correctly in respect of sales through consignment agents/depots they preferred a refund claim on 23-11-2000 well within the time. The Adjudicating Authority has rejected refund of ₹ 99,418/- as time barred under Section 11B of Central Excise Act, 1944. Section 11B(1) of Central Excise Act, 1944 specifies that the refund claim has to be filed within a period of one year from the relevant date . Relevant date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates/regions, declared to the department. This had resulted in excess payment of duty in some cases and short payment in some other cases. The Assessee was calculating the differential duty payable in respect of the clearances effected in different states with respect to cash discount and freight claimed as abatements for clearances made to their Bangalore depots. The same was reconciled state wise and the practice followed by the assessee was to arrive at the net differential duty payable instead of claiming refund of excess duty paid, and paying differential duty in full, for short payment. This procedure followed by the Assessee was objected by the department. The practice followed by the assessee in paying net differentia! duty on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the subject O-I-O as stated above, the Commissioner (Appeals) ought lo have decided the party s appeal alongwith the departmental appeal in which case he would have known the department s grounds of appeal; which is totally different from that of party s grounds of appeal; it is not the question of time bar, it is the question of the eligibility of the refund claim. Since, the amount of ₹ 1,72,053/- involved in this issue was the duty payable by the assessee for the period from 2/99 to 3/2000 and was not an amount paid in excess, but the amount of duty legally and correctly payable by the assessee as pointed out by the Department, and the assessee is not eligible for refund. Hence, the subject OIA does not appear to be correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at all payable as differential duty as already been paid by them as per the practice followed during the relevant period. 6. I have considered the submissions made at length by both sides and perused the records. 7. The issue involved in this case is whether the assesee is eligible for the refund of ₹ 1,72,053/- which was paid by them vide PLA entry No. 42/23-10-2000. It is seen that the ld. Commissioner (Appeals) has considered this amount as an amount not payable by the assessee. It is also seen from the records that the Adjudicating Authority has only rejected the refund claim on the ground that the amount which has been paid by them is hit by limitation. 8. It is to be noted that while debiting the amount in PLA, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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