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M/s. Uttar Haryana Bijli Vitran Nigam Ltd. Versus CCE, Panchkula

2017 (6) TMI 755 - CESTAT CHANDIGARH

Refund of excess excise duty paid on account of addition of margin of notional profit @ 10% - rejection on the ground of limitation as the appellant did not file letter of protest under Rule 233B of CER, 1944 - Held that: - when the duty was paid, the proceedings were still going on. Even though, they had filed RT-12 returns, gate passes and invoices by affixing the stamp ED paid under protest, the claim was rejected on the ground that the specific procedure was not followed - There are conflict .....

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- Refund not hit by limitation bar - appeal allowed - decided in favor of appellant. - E/419/2007 - A/61117/2017-SM[BR] - Dated:- 31-5-2017 - Mr. Devender Singh, Member (Technical) For the Appellant: Shri J.P. Kaushik, Advocate For the Respondent : Shri Harvinder Singh,AR ORDER Per: Devender Singh The brief facts of the case are that M/s. Uttar Haryana Bijli Vitran Nigam Ltd. filed refund claim of ₹ 9,65,944/- on 10.3.1999. The refund claim pertained to the excess excise duty paid du .....

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r (Appeals). The appeal was also rejected. Both authorities rejected the refund claim on the ground of limitation as the appellant did not file letter of protest under Rule 233B of Central Excise Rules, 1944. The appellant went in appeal before the Tribunal who vide Order dated 3.2.2005 allowed the appeal and remanded the matter back to the adjudicating authority. In compliance of the remand proceedings, by issuing the proper show cause notice dated 5.4.2005, the adjudicating authority adjudicat .....

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decided by the Tribunal vide Order No.1071/99/A dated on 2.8.1999 in their favour. To substantiate this, he has produced the order 2.8.1999 of this Tribunal. He contended that as per judgement of the Hon ble Madras High Court in the case of CCE, Chennai-II Vs. Electro Steel Castings Limited - 2014 (299) ELT 305 (Mad.) that payment of duty made only during the pendency of appeal against very levy of duty for the earlier period is deemed to be under protest and no limitation is applicable. He also .....

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rotest and intimation was to be given to the proper officer. Since the procedure under Rule 233B had not been followed, the protest marked on the gate passes and invoices was in compliance of the prescribed procedure. He relied on the judgement of this Tribunal in the case of Gujarat State Fertilizers and Chemical Vs. CCE, Vadodara - 2004 (166) ELT 193 (Tr-.Del.) 4. Heard both parties and perused the records. 5. The undisputed facts in this case are that the refund claim filed on 10.3.1999 on ac .....

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rejected on the ground that the specific procedure was not followed. There are conflicting judgements of this Tribunal on the admissibility of such marking on the documents. However, the fact remains that litigation proceedings for the period 1991-92 were going on. As held by Hon ble Madras High Court in the case of CCE, Chennai-II Vs. Electro Steel Castings Limited (supra) that payment made when the assessee has been challenging earlier levy of duty is deemed to be under protest and not otherwi .....

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eme Court is compelled to say that- Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect... That being the categorical observation of the Supreme Court, the same is squarely applicable to the facts of the present c .....

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me Court was called upon to decide starting date of period of limitation, whether it is from the date on which identical third party's case or the assessee's own case was finally decided by the Tribunal. In the case cited above, the payment was made under protest and the assessee originally classified the products under sub-heading 2404.60. Whereas, the Revenue classified the products under sub-heading 2404.50. The CESTAT in the case of another assessee held the same product to be classi .....

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