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CCE, Bhopal Versus M/s Diamond Cement

2016 (5) TMI 940 - CESTAT NEW DELHI

Refund claim - made by debit entry in their RG-23A Pt. I - Duty deposited under protest - Held that:- the Revenue has nowhere given any details as to how the decisions relied upon by the Commissioner (Appeals), which involve the same legal issue, are not applicable to the facts of the case. As regards the Tribunal decision in the case of CCE, Aurangabad vs. BCL Forgings Ltd. [2005 (7) TMI 231 - CESTAT, MUMBAI], which stands relied upon by Commissioner (Appeals), it has been contended that the De .....

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as much as in the present case the respondents have voluntarily paid the duty.

Apart from finding that the decisions relied upon by the Commissioner (Appeals) are fully applicable to the facts of the case, it is found that his observations and findings that the debit entry was countersigned by Superintendent (Preventive) and the show cause notice itself mentions that the debit was made on pursuance of the officers of the Central Excise Division, nowhere stands countered or rebutted b .....

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2. After hearing both the sides, duly represented by Shri S. Nanthuk, learned Jt. CDR for the Revenue and Shri Rahul Tangri, learned C.A. for the respondent, we find that the respondent debited their Cenvat credit account to the extent of ₹ 14,39,577/- in the year 1996, on various dates, by following the Revenue s view that waste and scrap of capital goods cleared by them is required be cleared on payment of duty. However, thereafter proceedings were initiated against the Assessee resulti .....

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1996. Accordingly, they filed a refund claim on 29/8/2002 i.e. within a period of one month of the rejection of Revenue s appeal by the Tribunal. The said amount for refund was subsequently reduced to ₹ 13,79,912/- on the ground that amount of ₹ 59,665/- already stands recovered by them from their customer. 4. Such refund claim was proposed to be denied by the Revenue on the ground of time bar, the respondent took a categorical stand before the Original Adjudicating Authority that t .....

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nal laying down that filing of an appeal, itself amounts to protest and there was no requirement to file a formal letter of protest. 5. However, the Original Adjudicating Authority rejected the refund claim. The said order stands appealed against before Commissioner (Appeals), who allowed the appeal by observing as under :- 7. In the case of CCE, Aurangabad vs. BCL Forgings Ltd. - 2005 (192) E.L.T. 922 (Tri. - Mumbai), it has been held that the appeal of an assessee against an assessment order o .....

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, it was held by the Honble High Court of Gujarat that payment having been made by assessee pursuant to demand made and threat made by the Superintendent was not a voluntary payment but was to be treated as payment under protest and hence the limitation period under Section 11B was not applicable. 8. In view of the above, the short question that arises for consideration is whether the debit made by the appellant in the year 1996 amounts to payment of duty under protest. From a perusal of the re .....

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llows :- .. the above amount of ₹ 14,39,577/- was debited by the notice on pursuance of the officers of Central Excise Division, Sagar (Emphasis added) 9. All these things prove that the payment made by the appellant was not voluntary. The insistence of the departmental officers coupled with the fact that the appellant filed an appeal against the Order-in-Original passed by the Additional Commissioner go to prove that the payment made by the appellant was under protest. In the light of the .....

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