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TMI Blog2022 (3) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN No.7632-34 dated 26.12.2012, Central Excise Duty amounting to Rs. 59,45,966/- was alleged to have been short paid and thus, was proposed to be recovered from the appellant alongwith the interest and the proportionate penalties. The said SCN was adjudicated vide Order-in-Original No.34-15-16 dated 20th November, 2015 confirming the proposed demand and ordering the recovery of interest as well as the imposition of penalty. This order was challenged before this Tribunal. Vide final order No.57105/2017 dated 11.10.2017 the matter was remanded back to the Original adjudicating authority for limited purpose of computing the period when the machine was working and to compute the demand along with the interest for the said period. It was also directed that if the duty already paid is found to be in excess then the duty calculated for the working days, the refund of excess amount be sanctioned as per law but within a period of four months. Reasonable opportunity of hearing was also directed to be given to the appellant. 1.1 The aforesaid OIO was also assailed by the Department in the Cross-Appeal which was decided by this Tribunal vide Final Order No.57706/2017 dated 03.11.2017 vide wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad failed to comply upon the aforesaid directions of demand. Rather, again confirmed the demand for the second machine even for the period when it remained closed. 3.2 In the second round of litigation, this Tribunal vide order dated18.02.2020 again passed the same directions of remand even for the period of closure during the month of April, 2012 to be complied within the period of 7 days from the receipt of this order. It is submitted that despite the said directions the original adjudicating authority has failed to comply therewith. The Department rather, meanwhile issued a SCN on 19th June 2019 proposing the refund application pending adjudication since 30th August, 2017 pursuant to the order of this Tribunal announced at first round of litigation to be barred by the period of time. It is submitted that the findings of Commissioner (Appeals) while upholding the said rejection are not sustainable as the refund was filed pursuant to the judgment of this Tribunal and was within one year of the said judgment. The order accordingly is prayed to be set aside and appeal is prayed to be allowed. 4. To rebut these submissions ld. DR has laid emphasis upon para 6.3 of the order under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achines to have been involved in the production of pouches by the appellant for the entire period from March, 2012 to August, 2012 but for an amount of Rs. 17,99,193/- thereby dropping the demand for Rs. 41,46,773/-. 6. The impugned refund has arisen on account of sealing and un-installation of one of the machines in the appellant's premises and non-production of notified goods during the period 16.04.2012 to 30.04.2012, consequent upon passing of final order of this Tribunal bearing No.57105/2017 dated 11.10.2017 remanding the matter back to original adjudicating authority. It was specifically held by this Tribunal in this order that - "The appellant is not supposed to pay any duty for the period when machine was sealed" and that- "If the excess duty has already been paid then after deducting the demand, the refund will be sanctioned as per law but within a period of four months". Despite these directions, the Order-in-Original dated 31.01.2019 was passed. 7. The order is still silent to calculate the duty with respect to second machine only for the days when the machine was under use during impugned period of four months. There is also no finding towards complying the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 has been accepted by Order-in-Original dated 30.04.2020. It was held that the period of April, 2012 was not the subject matter of SCN of 2012 rather the claim is barred by period of limitation as the amount prayed to be refunded was deposited as payment of excise duty on 03.04.2012 but the refund thereof has been filed on 18.04.2019. However, in view of the earlier orders of this Tribunal i.e. 11.10.2017 & 03.11.2017, I observe that said findings are factually incorrect. SCN of 2012 had covered the period from March, 2012 to July, 2012. Same was specifically recited even by this Tribunal in order dated 11.10.2017. Also that the period of impugned SCN is factually incorrect. Technically speaking the period of limitation is mentioned under section 11B. The provision is reproduced herein:- Section 11B. Claim for refund of duty and interest, if any, paid on such duty - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 10. Perusal of the above provision shows that the stipulated period for filing the refund claim is one year from the relevant date. The relevant date as per Explanation B thereof in the given facts and circumstances is sub-clause (ec) thereof (as quoted above). Apparently and admittedly, the refund claim was initially filed on 30.08.2018 pursuant to the CESTAT Order dated 11.10.2017 and 03.11.2017. Relevant date for the refund claim is therefore, the date of aforesaid orders. Hence, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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