New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (7) TMI 958 - ALLAHABAD HIGH COURT

2015 (7) TMI 958 - ALLAHABAD HIGH COURT - TMI - Denial of refund claim - period of limitation - duty was paid under protest or voluntary - Exemption at consessional rate of duty vide Notification No.140/83-CE dated 5th May, 1983 - Held that:- Appellant had specifically indicated in the declaration form under Rule 173B that they are paying the duty under protest, which was part of their letter dated 24th December, 1996 in which the appellant had categorically insisted that no duty was payable on .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ence, the appellant had put on record for paying the amount under protest with a further prayer to permit the appellant to avail the provisional assessment to duty under Rule 9B of the Rules till the case was finally decided.

Appellant had established beyond doubt that the appellant had always been contesting the department's claim for levying duty on the product manufactured by them and regularly agitated that no such duty was payable. In our view, if the appellant was disputing the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ppellant's application for refund on the ground that no protest letter was filed in accordance with the procedure prescribed under Rule 233B of the Rules. Since we have held that the protest letter was filed by the appellant, the question of the application being barred by limitation under Section 11-B of the Act does not arise. - Matter remanded back - Decided in favour of assessee. - Central Excise Appeal No. 235 of 2005 - Dated:- 14-7-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Notification No.140/85-CE dated 5th May, 1983 as amended from time to time. On the other hand, the Central Excise department was classifying the said shampoo under Tariff Chapter sub-heading No.3305.99, Chapter 33 of the Central Excise Tariff Act, 1985. Since there was a dispute with regard to the classification of the product and the appellant was not agreeing to the stand of the department, the appellant accordingly, filed a declaration under Rule 173B of the Central Excise Rules, 1944 (herei .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sued a letter dated 24th December, 1996 to the Assistant Commissioner, Central Excise Division, Moradabad indicating that the manufacture of shampoo does not attract central excise duty under Chapter heading 3305.99 and the conclusion drawn by the Central Excise department treating the said product as an excisable good was not tenable in law. The appellant in the said letter accordingly prayed that they may be permitted to avail the provisional assessment to duty under Rule 9B of the Rules till .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tant Commissioner, Moradabad is extracted hereunder in extenso: "From: DENAJE SANSTHAN 39, Malviya Nagar, Moradabad. To The Assistant Commissioner, Central Excise Division, Moradabad. Through: The Superintendent, Central Excise Range-2, Moradabad. Dear Sir, We have been granted Registration Certificate No.2806023250-A-1/Ch33/01/96 dt. 13.12.1996 under Rule 174 of Central Excise Rule, 1944 with reference to our application dated 13/14.11.1996, which was submitted for the purpose of carrying .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd Neem Shampoo as village Industry from 22.5.89 for supply to the Khadi & village industry. The aforesaid product therefore does not attract Central Excise duty under Chapter Heading 3305 or sales Tax or any other tax and the conclusion drawn by the Seizing Officers by treating the aforesaid product manufactured out of Sikakai, Amla and Ritha as excisable goods is therefore not tenable under law. Even the Supreme Court of India in its judgment dated 22.8.1972 passed in Civil Appeal No.37 of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and the same is sub-judice. 3. In order to resume the business of the manufacture and sale of the above product, and also to comply with the requirements of Central Excise Rules, 1944 we are submitting herewith the declaration of goods produced or manufactured in terms of Rule 173-B of the Central Excise Rules, 1944 for favour of necessary action at your end. 4. As under the above circumstance, it is not possible to determine the correct classification of the goods in question which in our opin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ption at consessional rate of duty vide Notification No.140/83-CE dated 5th May, 1983. Upon receipt of the said application, the Deputy Commissioner, Central Excise, Moradabad issued a show cause notice dated 25th August, 2000 observing that the appellant collected the duty paid from their customers and, therefore, it was a case of unjust enrichment and that the appellant was not entitled for any refund. The authority consequently, directed the appellant to show cause as to why the claim of refu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m was barred by limitation as well as it was a case of unjust enrichment. The appellant, being aggrieved, preferred an appeal before the Commissioner (Appeals), who rejected the appeal by an order dated 27th May, 2004 on the ground that the appellant had not followed the procedure as prescribed under Rule 233B of the Rules nor had intimated the department about their intention to do so. The appellant, being still aggrieved, filed an appeal before the Central Excise and Service Tax Appellate Trib .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e case, the Tribunal is legally justified in rejecting the claim of protest made, in the declaration of Classification of Rule 173-B and request for provisional assessment, as a protest letter under Rule 233B of the Central Excise Rules, 1944?" We have heard Sri Rishi Raj Kapoor, the learned counsel for the appellant and Sri B.K.S. Raghuvanshi, the learned counsel for the Department. Under Section 11B of the Act, a person can claim refund of any duty within a prescribed period. The second p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itation and, thereafter, on the ground that the procedure prescribed under Rule 233B of the Rules was not followed. The Deputy Commissioner rejected the refund claim of the appellant on the following grounds: "The letter dt. 24.12.1996 which party has claimed as their letter of protest, they had request only for provisional assessment under Rule 9B and not for duty under protest under Rule 233-B. The party in their declarations under Rule 173-B dt. 31.12.96, has only mentioned the classific .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e appeal holding:- "The appellant's plea is that the duty was paid under protest the refund is not time bar. I have perused the letter dated 24.12.96 which they stated was given to the department intimating payments under protest. A perusal of the letter shows that they have requested the department for provisional assessment under Rule 9B as they do not agree with the classification of the product and had filed a writ in the Hon'ble High Court of Allahabad. This letter no where sta .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tries Vs. UOI reported in (1997 (89) ELT 24) had stated. "A reading of the rule (Rule 233B) shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he had paid the duty under protest. The period of limitatio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mandatory for the appellants to file a protest letter and give the grounds on which the protest is being lodged and obtain an acknowledgement of the letter of protest. Once the protest is lodged, the depart is duty-bound to pass an order on the protest letter. Since the appellants had not filed protest letter before the competent authority for passing any order, therefore, they cannot claim that they are paying the duty under protest and take benefit of the limitation prescribed for filing the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or the refund and that the said application was barred by limitation. In order to appreciate the submission of the learned counsel for the parties, it would be essential to peruse Section 11B of the Act. For facility, the said provision is extracted hereunder: "11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ncidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person. Provided ............ Provided further that the limitation of six months shall not apply where any duty has been paid under protest." A perusal of the aforesaid provision indicates that any person claiming refund may make an application for refund before the expiry of six months from the relevant date, in such form and manner as may be prescribed and that the application shall be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ere 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. (3) The acknowledgement so given shall, subject to the provisions of sub-rule (4), be the proof that the assessee has paid the duty under protest from the day on which the letter of protest was deliver .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise. (6) In cases where the remedy of an appeal or revision is available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may file an appeal or revision within the period specified for filing such appeal or revision, as the case may be. (7) On service of the decision on the representation referred to in sub-rule (5) or of the appeal or revision referred to in sub .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under this rule shall not constitute a claim for refund." A perusal of the aforesaid rule indicates that where an assessee desires to pay duty under protest, he shall deliver to the proper officer a letter to this effect. No format of the letter has been prescribed and, therefore, the format of the letter has been left to the assessee. According to the appellant, a protest letter had been given and, therefore, they had complied with the necessary requirement as stipulated under Rule 233B o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ant had made the payment of duty under protest after following the procedure prescribed by the Rules. Having heard the learned counsel for the parties, we find that in Mafatlal Industries Ltd. Vs. Union of India, 1997 (89) ELT 247 SC, the Constitution Bench of the Supreme Court held that any person paying duty under protest has to follow the procedure prescribed by the Rules. The Supreme Court held:- "85. The rule no doubt requires the assessee to mention the "grounds for payment of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. This period of limitation of six months will then have no application to him. 86. We may cl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arrow or hyper technical manner and only a substantial compliance thereof would be sufficient to show that protest had indeed be lodged. The Court observed: "........ The observation in the said paragraph "any person paying the duty under protest has to follow the procedure prescribed by the rule" does not mean that Rule 233B could be construed in a narrow, pedantic or hyper technical manner. In our opinion Rule 233B, as interpreted by the decisions of the Supreme Court referred t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id if it conflicts with or is in derogation to a section in the Act vide [C.I.T. Vs. S. Chinappa Mudaliar, AIR 1969 SC 1068]. Hence, a rule should not be construed in a manner that it conflicts with a Section of the Act." In Indian Piston Ltd. Vs. Collector of Central Excise, Madras, 1990 (46) ELT 3, the Madras High Court held : "10. Mr. Ganguly next drew our attention to Rule 233-B of the Central Excises Rules, 1944 which lays down the procedure to be followed when duty is paid under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e principles of law enunciated above, we find that in the instant case, the appellant had specifically indicated in the declaration form under Rule 173B that they are paying the duty under protest, which was part of their letter dated 24th December, 1996 in which the appellant had categorically insisted that no duty was payable on the product manufactured by them. The language and content of the letter dated 24th December, 1996 read with the declaration form as reproduced above leaves no room fo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Rule 9B of the Rules till the case was finally decided. In the light of the aforesaid letter and the declaration form, we are of a definite opinion that the appellant had established beyond doubt that the appellant had always been contesting the department's claim for levying duty on the product manufactured by them and regularly agitated that no such duty was payable. In our view, if the appellant was disputing the levy of duty and was agitating that no duty was payable and that payment wa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version