TMI Blog2020 (3) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... r - Appeal dismissed - decided against appellant. - Excise Appeal No. 10197 of 2018-SM - A/10729/2020 - Dated:- 3-3-2020 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR Shril. K.I. Vyas, Advocate for the Appellant Shri. L. Patra, Authorised Representative for the Respondent ORDER RAMESH NAIR The fact of the case in brief are that a show cause notice was issued to the appellant for wrong availment of cenvat credit amounting to Rs, 33,90,576/- on the various invoices which were found issued by fake/fictitious and non existing dealers as per alert circular dated 22.09.2005 issued by the Commissioner, Central Excise Customs, Surat I. The Appellant had paid the amount of ₹ 27,57,221/- against the amount of cenvat credit availed wrongly and ₹ 3,93,139/- as interest on such amount voluntarily. The adjudicating authority confirmed the demand and appropriated the amount of ₹ 27,57,221/- already paid. Being aggrieved by the said demand order in original, the appellant filed the appeal before the Commissioner (Appeal), who vide OIA No. RKA/514/515/SRT/511/2010 DATED 6.9.2010 partially allowed the appeal under which only an amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) UOI V Suvidhe Ltd - 1997 (94) ELT A1589 (SC) 4. Shri L. Patra Ld. Assistant Commissioner (Authorized representative) appearing on behalf of the revenue reiterates the findings of the impugned order, he submits that at the time of payment of cenvat amount the same was paid as duty therefore, refund of said duty is governed by the provision of Section of 11B, hence, both the lower authorities have rightly denied the refund on the ground of time bar. He placed reliance on the following judgments 1) CESTAT Order No. A/11614/ 2018 dated 01.08.2018 in case of Petronet LNG Limited 2) CESTAT Order No. A/13327/17 Dt. 10.10.2017 Citizen Metalloys Ltd. Vs. CCE Ahmedabad-III 3) 2009 (240) ELT 239 (Tri-Del) CCE, Jaipur-II Vs. Evershine Marbles Exporters P.Ltd. 4) 2011 (269) ELT 233 (Tri-Chennai) Redington India Ltd. Vs CC, Chennai 5) 2003 (157) ELT 500 (SC) Dena Snuff Pvt.Ltd. Vs. CCE, Chandigarh 6) 2015 (317) ELT 379 (Tri-Mum)- Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai II. 5. I heard both the sides and perused the record. I find that the limited issue in the present case involved is that whether the refund of cenvat amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the demand there is no doubt that the said payment has taken colour of duty. As regard the appellant s plea that the tribunal remand order considered the said amount as deposit for hearing the appeal, I find that the payment of cenvat credit was considered by the tribunal as sufficient for hearing the appeal. It is obvious that once the appellant paid the substantial duty amount there cannot be further direction of separate deposit for hearing the appeal but that itself does not change the character of payment at the time when it was made. I am of the view that if the similar payment is considered as pre-deposit then in no case of refund section 11B will apply. As regard the submission of the Ld. Counsel that since the payment was made on insistence of the department such payment should be treated under protest. I agree with this submission of the appellant. However, the protest continued till the date of remand order. The refund itself has arisen after the tribunal has passed remand order dated 17.10.2011, which is relevant date for the refund under section 11B. After this date of remand order under protest if any, stand vacated, therefore, time limit of one year shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27 of the Customs Act or Section 11B of the Central Excise Act, 1944. In the case of Collector of Central Excise, Chandigarh vs. Doaba Co-operative Sugar Mills - 1988 (37) E.L.T. 478 (S.C.), the Hon'ble Apex Court held as under:- 6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 8 (SC) the Hon'ble Supreme Court in the facts of the case held that assessee filing refund claim for past four years following a favourable decision on classification in the case of a manufacturer of similar goods, set-aside the Hon'ble High Court order which directed the Assistant Commissioner to consider the claim for beyond limitation period without taking into consideration the question of limitation. Accordingly, the High Court judgment was set-aside. In the case of Porcelain Electrical Manufacturing Company vs. Collector of Central Excise, New Delhi 1998 (98) ELT 583 (SC), the Hon'ble Supreme Court held that refund claim filed before the departmental authorities to be governed by the time limit provided under the statute, general law of limitation not available. The decisions where assessee has invoked extraordinary jurisdiction of the High Courts and the Courts have applied the period of limitation of three years, the same is inapplicable to cases where the refund application has been moved before the Revenue authority. The decision in the case Escorts Limited vs. UOI 1998 (97)ELT 211 (SC), the Hon'ble Apex Court has held that application for refund is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority was bound to sanction the refund claim in terms of CBEC Circular 572/9/2001-CX dated 22.02.2001. The relevant para of the Circular is reproduced as under:- (3) The cases where refund arises due to order of Commissioner (Appeals) or Commissioner of Central Excise/Customs and decision is taken to contest them before CEGAT. In such cases appeal/stay application should be filed expeditiously well before the expiry of stipulated period of three months (and not waiting for the last date of filing of appeal). However, no refund/rebate claim should be withheld on the ground that an appeal has been filed against the order giving the relief, unless stay order has been obtained. It would be the responsibility of the concerned Commissioner to obtain stay order expeditiously where the orders passed by Commissioner (Appeals) suffer from serious infirmities and it involves grant of heavy refunds. Therefore, the period of one year shall be reckoned from the date of receipt of Commissioner (Appeal) order and not from the date of receipt of Tribunal s order. 7. For the refund claims arising out of order settling the dispute, there is specific provision made und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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