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2018 (2) TMI 893

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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to the appellant i.e. M/s. Bosch Ltd. wherein it was alleged that they have undervalued the inputs supplied to the appellant, consequently, the appellant has undervalued their finished goods and not paid correct duty. On these premises, an audit objection was raised against the appellant for the period July 2008 to June 2009 to demand differential duty of 22.66 lakhs. Based on the audit objection, the appellant reversed the amount of ₹ 22,66,906/- (Rupees Twenty Two Lakhs Sixty Six Thousan .....

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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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erential duty in their cenvat credit account and not raised any protest for the payment of the said duty. As appellant has admitted that the amount of reversal in cenvat credit as duty therefore provisions of Section 11B of the Act are applicable and refund claim has not been filed within time of one year from the payment of duty and duty has not been paid under protest, therefore, they are not entitled for refund claim. 5. Heard the parties. Considered the submissions. 6. As facts of the case a .....

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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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riate. Therefore, the said amount shall remain with the Department as Revenue deposit. The same view was taken by this Tribunal in the case of Parle Agro Pvt. Ltd. (supra) wherein this Tribunal observed as under: 6. Having considered the rival contentions, we find that as held by Hon'ble of Punjab and Haryana High Court and as earlier held by this Tribunal the amounts, which are deposited during the pendency of investigation and proceedings, if the same are not adjudged as duty fine or penal .....

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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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ged on behalf of the department is that for being a protest as envisaged by Rule 233B, the assessee ought to have followed the procedure prescribed by the Rules and in the present case, such a procedure has not been followed. This contention, in our view, is of no avail for the department. In the first place, this contention remains rather a matter of form than of substance. Secondly, the requirements of Rule 233B cannot be construed in a narrow or hyper-technical manner and essentially, what is .....

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l insisted, the assessee made the payment. It is not in dispute that ultimately, the objections of the assessee were sustained. 32. In the totality of circumstances, it is very difficult to find as to how the requirements of sub-rule (4) of Rule 233B could have been fulfilled in respect of the clearances which had already been made before the department compelled the assessee to make payment of duty i.e., at least for the clearance made between 1-3-1994 to 5-12-1995. In the present case, in resp .....

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