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2015 (10) TMI 1560 - CESTAT MUMBAI

2015 (10) TMI 1560 - CESTAT MUMBAI - TMI - Claim of refund - period of limitation - duty was paid under protest or not - Denial of exemption under the Notification13/94-CE(NT) and 8/96 - Classification - Held that:- Appellant protested the recovery of duty by the ordinance factory from him and later contested the claim right up to the Hon ble High Court. It is only when High Court decided that the civil Courts did not have jurisdiction in the matter they approached the department with a refund a .....

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Hon ble Supreme Court in case of Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT OF INDIA].

There is no evidence that the delay or litigation was deliberate. In the instant case it is apparent that the appellants were contesting the liability right from the date of payment of duty before various forums. Thus it can be considered that the duty was paid by them under protest. In view of above the refund claim cannot be considered as time-barred.

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Asst. Comm. (AR) ORDER Per: Raju 1. The appellants are purchasing Cupro Nickle Swarf (CNS) from the ordinance factory located at Nagpur. The ordinance factory at Nagpur was clearing the said material at nil rate of duty availing exemption under the Notification13/94-CE(NT) and 8/96. The said notifications exempted Unrefined copper and unwrought copper, intended for use in the manufacture of utensils or handicrafts falling under heading 74.02 or 74.03 from whole of Central Excise duty subject to .....

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ification and also pay applicable Central Excise duty. The ordinance factory later on paid the Central Excise duty on the said material cleared to the appellants. 2. The ordinance factory recovered this amount of duty paid from the appellant in 1997 by adjustment against the future tenders during the period February 1997 to May 1997. The appellants opposed this demand and approached the arbitrator in May 1997. The ordinance factory refused to appoint the arbitrator and in November 1998 the appel .....

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the revision petition filed by the ordinance factory in June 2005. Thereafter in December 2005 the appellants file a refund claim before the Department. The refund claim was rejected on 2 counts. Firstly it was held to be barred by limitation as the duty was paid in 1996 whereas the refund was filed in 2005. It was held that the duty was not paid under protest and hence the limitation provided under the act would apply. Secondly it was held that the exemption was not available to the material cl .....

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lassifiable under heading 74.03. He also argued that the ordinance factory may not have filed protest but the appellants have been protesting from the day the duty was recovered from them. They had tried arbitration, filed suit in the court and even contested in the High Court. The protest was clear and apparent. The appellant relied on the decision of Tribunal in case of Kota oxygen Limited 2001(130)ELT889, the decision of Tribunal in case of Hutchinson Max Telecom 2004 (165) ELT 175 and the de .....

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filed by the ordinance factory while paying duty. They have simply paid duty and recovered it from the appellant. The appellant protested the recovery of duty by the ordinance factory from him and later contested the claim right up to the Honble High Court. It is only when High Court decided that the civil Courts did not have jurisdiction in the matter they approached the department with a refund application. There is no doubt that the appellants have been protesting against recovery of this a .....

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ds as under: 107.On the issue of the retrospective application of the amended provisions of the Excise Act, I wish to emphasise one practical difficulty that may arise. Reddy, J. has held that in respect of proceedings that have been finally culminated, there is no question of reopening proceedings, and retrospectively applying the amended Section 11B. However, in respect of decrees and orders that have become final but have not been executed, the non obstante clause, Section 11B(3), provides as .....

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ver, under the scheme of the amended Excise Act, the application for refund which is a pre-requisite for invoking Section 11B(2), is required to be made within six months from the payment of duty. It is obvious that this requirement cannot be complied with in respect of pending decrees and orders. But it must at the same time be realised that in such a case, the assessee was protesting against the recovery of the excise duty from him for which he had even initiated legal proceedings. It would th .....

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e Apex Court that contesting the liability before the appellate forum can be considered as a protest against such liability. Moreover Section 14 of the Limitation Act, 1963: 14 Exclusion of time of proceeding bona fide in court without jurisdiction. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be .....

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e such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason .....

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