TMI Blog2015 (11) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue before the Tribunal. Now it is not open for the Revenue to contend that the protest was not before a proper officer and hence the claim for refund was time barred. Such a plea, at this stage, cannot be entertained. It is clear from the facts that the duty of ₹ 3,45,548/- was paid from the personal ledger account and the rest of the amount by credit of RG23A Part II account. The said total amount was disallowed by the Assistant Commissioner, whereas the Commissioner, in appeal, allowed to the extent of duty paid from personal ledger account to the tune of ₹ 3,45,548/- only on the ground that the DOT vide its letter dated 10.07.1998 had certified that they have not reimbursed excise duty for the supply bills raised for the said amount and further holding that there is no provision in law for restoration of the credit, once utilized in respect of the balance amount of ₹ 65,41,683/- and ₹ 26,69,033/-. - there is no evidence to show that the claimant has discharged such burden. But so far as the amount of ₹ 3,45,548/- is concerned, since the letter dated 10.07.1998 of the DOT was produced, the said amount was allowed. The modvat credit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting kits as against the provisions of Rule 57F of Central Excise Rules, 1944? c) Whether modvat credit accrued on inputs that go into the manufacture of exempted cable jointing kits and used for payment of duty on clearances of such kits can be allowed against the provisions of Rule 57F of Central Excise Rules, 1944? 3. The respondent assessee is in the business of manufacture of cable jointing kits falling under chapter sub-heading No.8547.00 of Central Excise Tariff Act, 1985. The assessee paid the excise duty of an amount of ₹ 1,01,92,689/- out of which an amount of ₹ 95,56,264/- was allegedly paid under protest, whereas an amount of ₹ 6,36,425/- was paid in respect of supplies made to others. The said amount of ₹ 95,56,264/- was paid on the goods cleared to Department of Telecom which was not reimbursed by the Department of Telecom and the details of duty paid are as follows: BREAK UP OF DUTY PAYMENT PARTICULARS (a) From Personal Ledger Account ₹ 3,45,548-00 (b) From RG 23A Part II Account (Credit accrued on components of cable jointing kits) ₹ 65,41,683-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.02.1998 was pronounced. The assessee submitted that it complied with the procedure for lodging the protest and accordingly requested for refund. It also submitted that whether a protest is lodged with the Superintendent or the Assistant Commissioner, it would only be a letter of protest under Rule 233B. The Assistant Commissioner rejected the refund claim for ₹ 95,56,264/- on the ground that it was time barred, the assessee had not filed the letter of protest before the proper officer and Sub- rule (13) of Rule 57F of the Rules does not allow any cash refund for duty credited under RG 23A Part II account except when the goods are exported on payment of duty. Against the said order, the assessee preferred an appeal to the Commissioner of Customs Central Excise (Appeals), Basheerbagh, Hyderabad, who in his order dated 06.12.1999, held that there was protest payment of duty by the assessee and there was substantial compliance of Rule 233B of the Rules and the claim was not hit by time bar. It was held that since the Department of Telecom vide its letter dated 10.07.1998 had certified that they have not reimbursed excise duty for the supply bills raised against the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore disposed off in the above terms. 6. It is submitted by the learned Standing Counsel for the Revenue that no appeal was preferred against the Final Order No.1183/02 dated 06.09.2002 passed in case of Gold Stone Engineering Limited. He further submitted that RG23A Part II records cannot be debited and there is no provision for refund of duty credited in RG23A Part II Account except when the goods are exported on payment of duty. 7. The learned counsel for the assessee, on the other hand, submitted that the Commissioner of Customs Central Excise (Appeals), Basheerbagh, Hyderabad held that there was a protest within the meaning of Rule 233B of the Rules and the claim for refund was not time barred. When the Commissioner held that the assessee was not entitled to the modvat credit of ₹ 65,41,683/- and ₹ 26,69,033/-, the matter went in appeal before the Tribunal and the Tribunal, based on its previous order, held in favour of the assessee. It is not open to the Revenue to challenge the order of the Tribunal, when the earlier order of the Tribunal on which it was based, had become final. 8. Section 11-B of the Act deals with claim for refund of duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption but not so required when exported outside India, if returned to a factory after having been 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 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. 9. A reading of the above provision makes it clear that if the duty was paid under protest, the limitation of six months shall not apply. 10. In the instant case, it is clear that on the instructions of Superintendent of Central Excise, a declaration under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a simple letter of pretest would constitute a protest within the meaning of Rule 233B and hence the question of limitation does not arise for refund of duty. 14. Be that as it may, in the present case, the Commissioner of Customs Central Excise (Appeals), Hyderabad held that there was a protest under Rule 233B and the claim for refund was not time barred. The said finding was not challenged by the Revenue before the Tribunal. Now it is not open for the Revenue to contend that the protest was not before a proper officer and hence the claim for refund was time barred. Such a plea, at this stage, cannot be entertained. Accordingly, we hold the first question against the Revenue and in favour of the assessee. 15. The next point for determination is whether the duty paid through the credit of RG23A Part II account can be ordered to be refunded with debit of the account with liberty to the Department to take action for denial of availment of modvat claim as ordered by the Tribunal. It is clear from the facts that the duty of ₹ 3,45,548/- was paid from the personal ledger account and the rest of the amount by credit of RG23A Part II account. The said total amount was di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or is chargeable to nil rate of duty. In this case, by the time of the judgment of this Court, the duty was paid from the input credits availed by the assessee. Both the authorities concurrently held that those credits cannot be reversed and there is no provision for reversal of the same. But the Tribunal directed that RG23A Part II should be ordered to be credited with the debits of duty made in the RG23A registers and the Department was given liberty to take such action as permissible under law to deny the availment of modvat claim. Since, in the instant case, the said credit was utilized for payment duty, we do not think it proper to direct the authorities to reverse the entries in RG23A registers by giving them liberty to deny the availment of modvat claim at a later point of time. Such a course of action has no sanction in law. The learned counsel for the assessee also could not show us any provision of law for reversal of entries, as ordered by the Tribunal. 19. In the circumstances, we are of the opinion that the view taken by the Tribunal for reversal of entries in RG23A Registers consequent to the orders of this Court in W.P.No.22078 of 1997 and batch dated 02.02.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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