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Maini Precision Products Pvt. Ltd. Versus Commissioner of Central Excise, Service Tax And Customs Bangalore-II

2018 (2) TMI 893 - CESTAT, BANGALORE

Refund claim - denial on the premise that as appellant has paid the differential duty without any protest therefore refund cannot be granted - whether Section 11A(2B) had been applied or not? - Held that: - as per Section 11A(2B), the show-cause notice is not required to be issued if the assessee pays duty along with interest - Admittedly, in this case appellant did not pay interest. Therefore, the appellant did not comply with the provisions of Section 11A(2B) of the Act. - In this case, a .....

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17 - SHRI ASHOK JINDAL, JUDICIAL MEMBER Shri G. Shivadass, Advocate, For the Appellant Smt Kavitha Poduwal, AR, For the Respondent Per : ASHOK JINDAL The appellant is in appeal against the impugned order where their refund claim has been rejected by the authorities below on the premise that as appellant has paid the differential duty without any protest therefore refund cannot be granted. 2. The brief facts of the case are that an investigation was conducted at the end of the supplier of inputs .....

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d Nine Hundred and Six only) in their cenvat credit account. The appellant informed to the Department on 14.09.2009 that they have reversed the said amount in their cenvat credit account but they will not pay any interest and penalty as there is no collusion of the appellant with the supplier of the inputs. Later on, on 22.12.2010, another letter was issued to the appellant demanding differential duty for the period 2004-05 to 2010-11 up to November 2010 on the basis of the audit objection raise .....

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em. Aggrieved from the said order, the appellant is before me. 3. Learned counsel for the appellant submits that duty can be paid by three modes: (a) At the time of clearance of goods (b) in terms of Section 11A of the Central Excise Act by issuance of the show-cause notice and (c) as per the provisions of Section 11A(2B) of the Act wherein on detection, the appellant assessee pays differential duty along with interest, there is no requirement to issue show-cause notice. 3.1. It is his contentio .....

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jected. In support of his submissions, he relied on the decision of the Hon ble Rajastan High Court in the case of Shree Shyam Filaments Vs. CCE, Jaipur - 2014 (303) E.L.T. 195 (Raj.) and also relied upon the decision of this Tribunal in the case of Parle Agro Pvt. Ltd. Vs. CCE, Noida - 2017-TIOL-1406-CESTAT-ALL. 4. On the other hand the learned AR opposed the contention of the learned counsel and submits that at the time of raising audit objection, the appellant themselves has reversed the diff .....

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re not disputed, therefore same are not repeated here again for the sake of brevity. 7. Admittedly in this case no show-cause notice has been issued to the appellant under Section 11A of the Act. 8. The only dispute with regard to this appeal is whether Section 11A(2B) had been applied or not. 9. For the sake of convenience provisions of Section 11A(2B) are extracted here: ((2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, t .....

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he amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short- .....

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Central Excise Officer, but for this sub-section.] On going through the said provisions, the show-cause notice is not required to be issued if the assessee pays duty along with interest. Admittedly, in this case appellant did not pay interest. Therefore, the appellant did not comply with the provisions of Section 11A(2B) of the Act. In that circumstances, without issuance of show-cause notice under Section 11A of the Act, duty paid by the appellant at the time of audit objection cannot be approp .....

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ty then the amount that is not adjudged as duty, fine and penalty is to be treated as Revenue deposit and the provisions of refund of duty shall not be applicable to the same. The amount which has been adjudged is as per the authority of law and the amount which is in excess of the adjudged amount if retained that such retention of said amount shall be without authority of law and Article 365 of Constitution of India has not authorized Revenue to retain such amount. In the present case, the pena .....

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I find that similar issue came up before the Hon ble High Court of Rajastan in the case of Shree Shyam Filaments (supra) wherein Hon ble High Court observed as under: 25. It is not in dispute that after the aforesaid two communications, the assessee did make payment of the differential duty in question in respect of addition to the assessable value of goods on account of transportation, insurance, handling and delivery charges for the clearances made during the period 1-3-1994 to 30-11-1996. Th .....

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odged the protest by the letter dated 5-10-1995, the department had been insisting for making such payment and hence the assessee put on record emphatic denial of the department s propositions; and the statement had been even to the extent that the insistence for such a payment would be unjust and against the principles of justice. 27. For their subject, contents and tenor, the aforesaid two letters dated 5-10-1995 and 5-12-1995 could only be regarded as the letters of protest. The contention ur .....

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required is that substantively, there has to be a protest in writing. Thirdly, as shall be seen hereafter, all the requirements of Rule 233B cannot even be employed in the fact situation of the present case. Fourthly and in any case, the rule is procedural in nature and cannot control the substantive provision of Section 11B(1) of the Act. …………….. 31. The factors required to be taken into consideration in this case are that the payment was made during the peri .....

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