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TMI Blog2024 (10) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of central excise audit parties, appellants have reversed Rs.13,016/- on 01.05.2013, Rs.14,642/- and Rs.12,484/- vide entry no.123 and 124 both dated 20.03.2014, Rs.67,800/- vide Entry no.01 dated 01.04.2015, Rs.1,12,613/- vide Entry no.02 dated 01.04.2015. In compliance of IAR 54/HPR/CE/2015-16, they reversed Rs.66,546/- vide entry No.03 dated 01.04.2015, in compliance of IAR 62/HPR/ST/2016-17, they reversed Rs.2,40,163/- vide entry No.02 dated 04.05.2017. Thereafter, they filed refund claim with jurisdictional Assistant Commissioner claiming refund of the above amounts totally amounting to Rs.5,34,341/-. 2.3 Similarly, in compliance of IAR 18/2014-15, they reversed an amount of Rs.57,755/- vide entry No.157 dated 20.03.2014. In compliance of IAR 54/HPR/CE/2015-16, they reversed Rs.24,619/- vide entry No.01 dated 01.04.2015. In compliance of IAR 23/HPR/Ex/2016-17, they reversed Rs.5,94,178/- vide entry No.01 dated 04.05.2017. Thereafter, they filed refund claim with jurisdictional Assistant Commissioner on 20.12.2019 claiming refund of the above amounts totally amounting to Rs.6,76,552/-. 2.4 After scrutiny of the refund claims, show cause notice dated 05.03.2020 was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, I find that the reversals were made by the appellant themselves from time to time on the basis of audit objections which were conducted by the officers from time to time. From the available records, I find that the audit reports or observations were complied with by the appellant from time to time & such compliances were deemed to have been concluded as no further proceedings has been initiated by the department. The adjudicating authority also specifically noted that there was no indication of any payment made under protest by the appellant. I also find that Section 11A of the Central Excise Act, 1944 authorizes the department to conclude any proceeding of duty short paid or not paid once it is paid up along with interest etc.. In that view, I find that the submission of appellant that no show cause notice was issued is meaningless, as it was already deemed to have been concluded as per law. Such being the case, there was no occasion for the appellant to file the refund claims as there was no cause of action or there was no favourable order for refund of such amounts from any higher authority. From such factual background, I find that the refund claims submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside. The law is that even self- assessment which may be non-speaking are also liable to be appealed against being appealable & suo-moto refund application cannot be filed by ignoring the appeal provisions. 11. The contention of the appellant that there were decisions of the Tribunal/ High Court/Supreme Court on several issues that were applicable to the issues pertaining to the appeals, I find that such contentions cannot be accepted as there was no favourable order from any authority against the reversals of Cenvat Credit & payments made by them during the relevant period pertaining to those specific audit paras. In that view of the matter, the contention of the appellant that Cenvat Credit was admissible to them on merit does not sustain. I also found that their contention of payment under protest was not factual in as much as the appellant themselves in their correspondence dated 17.7.2013 & 15.5.2017 had categorically stated that the payments along with the interest etc. have been made by them & that they requested the department that the audit para may be deemed to have been settled & no show cause notice may be issued to them. In such a background it is conclusively pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re- assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the bar of limitation also. I also find that Hon'ble Bombay High Court in the case of M/s National Leather Cloth Manufacturing Co. 2003 (156) ELT 654 (Bombay) following has been held:- "5. As regards the rejection of refund claim for the period from 12th November, 1977 to 12th November, 1980 is concerned it was submitted that by a letter dated 4th January, 1980 the Petitioners had informed the Respondents that, they were paying duty under protest and, therefore, refund claim at least from the date of payment of duty under protest ought to have been held to be within time. A perusal of the letter dated 4th January, 1980 (Exhibit 'A‟ to the petition) clearly shows that in the said letter nothing was stated as to which item is a post- manufacturing expense and which item cannot be included in the assessable value. In fact, by a letter dated 21st January, 1980, the Respondents had informed the Petitioners that their letter dated 4th January, 1980 is vague and in the absence of particulars, the payments made thereafter cannot be treated as payment under protest. Under the circumstances, we see no reason to interfere with the finding given by the adjudicating authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of the document. In those circumstances of the case, we are of the view that the order of the Tribunal requires no interference and no question of law much less a substantial question of law is involved so as to entertain the appeal. 4.9 In case of Tungabhadhra Machinery & Tools Ltd. [1988 (37) E.L.T. 179 (A. P.)] Hon'ble Andhra Pradesh High Court observed as follows: 9. Mr. K. Subrahmanya Reddy also relied upon a recent decision of the Supreme Court in Salonah Tea Company Ltd. v. Superintendent of Excise, Nowgong -1988-1, S.C. Cases 401 = 1988 (33) E.L.T. 249 (S.C.) to contend that in case of tax collected illegally or unauthorisedly, the Court should not observed any period of limitation in the case of a writ petition. In this case, the Supreme Court reiterated that ordinarily the Court applies the rule of three years for claiming refund of tax paid under a mistake, and that this 3- year period is computed from the date when the mistake is discovered. It, however, observed that this period is not an inflexible rule, and that it is for the Court to exercise its discretion having regard to the facts of each case. Indeed, on the facts of that case it was found that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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