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TMI Blog2024 (10) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Shri Jigar Shah Learned Counsel with Shri Amber Kumrawat learned Advocate appearing on behalf of the appellant at the outset submits that as regard the admissibility of the refund there cannot be any dispute that the appellant have paid the duties which is liability of the Halol Unit and in case of Halol unit also the duty was subsequently paid. Therefore, the duty paid by the appellant unit is legally refundable. Hence, on this count the refund is admissible. 2.1. He also submits that the appellant have filed the refund claim within one year form the relevant date, in terms of Section 11B of Central Excise Act, 1944. Subsequently, department has returned the refund claim, so even though the date of filing of refund second time is after one year from the relevant date but the date of first filing of refund should be taken as date of filing from the relevant date. Accordingly, the appellant's refund claim is not time bar. This issue has come up in various judgments before this Tribunal. He placed reliance on the following judgments:- Nokia India Sales Pvt. Ltd Vs CC 2019 (368) ELT 975 (Tri.-Ahmd.) CCE Vs Bhandiguri Tea Estate 2001 (134) ELT 116 (Tri.-Kolkata) Devang Paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made in said decisions do squarely cover the current situation. 11. In that view of the matter, without making much reflection upon the findings of the authority, we are of the view that this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of Rs. 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002. All the communications and order, which are impugned in the petition are hereby quashed and set aside. The petition, thus, is allowed. Rule is made absolute to aforesaid extent. No order as to costs." 4.1 The Hon'ble Gujarat High Court dealing the case of Devang Paper Mills Pvt. Ltd (Supra) on the identical issue passed the following order: - "The petitioner has prayed for setting aside the communication dated 5-5-2015 as at Annexure-A to the petitioner as well as notice dated 21-7-2015 as at Annexure-M to the petition. 2. Brief facts are as under : - 2.1 The petitioner is a private limited company and is engaged in the manufacture of excisable goods for which the petitioner enjoys central excise regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would not reverse the amount and credit into the account of the assessee. It was therefore treated as non-payment of the duty and issued notice for recovery with penalty. 5. Whatever be the accounting difficulty, when undisputed fact is that the petitioner did pay a certain excise duty, merely mentioning wrong code in the process, cannot result into such harsh consequence of the entire payment not being recognized as valid, incurring further liability of repayment of the basic duty with interest and penalties. Such amount was deposited by the petitioner with the Government of India and it was duly credited in the Government account. It is not even the case of the respondents that the petitioner had any other code by the number AADCD7232REM001 and for which there was separate manufacturing activity inviting separate duty liability. Indisputably, thus, the petitioner had singular duty liability for which the actual payment was also made. Under the circumstances, the impugned communication dated 5-5-2015 and notice dated 21-7-2015 are quashed. The respondents are directed to give credit of the duty paid by the petitioner for a sum of Rs. 22.15 lacs by making necessary accounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to both the appeals. The refund application was returned by the department and subsequently it was resubmitted along with Chartered Accountant Certificate. The date of initial submission of refund should be reckoned. He placed reliance on the following judgments : * CCE Bolpur v. Bhandiguri Tea Estate - 2001 (134) E.L.T. 116 (Tri.-Kol.). * Rubberwood India v. CC Cochin - 2006 (206) E.L.T. 536 (Tri.-Bang.). 2.1 As regard unjust enrichment, he submits that since the price of mobile phones at the time of payment of CVD @ 6% and subsequently remain same, therefore, there is no passing on the incidence on excess paid CVD to any person. He further submits that to this effect a Chartered Accountant Certificate was submitted which was discarded by the lower authority. He placed reliance on the following judgments : * CC, New Delhi v. Organan (India) - 2008 (231) E.L.T. 201 (S.C.) * Cadbury India Ltd. v. UOI - 2015 (315) E.L.T. 488 (Ker.-H.C.) * ACC v. CCE, Jamshedpur - 2001 (130) E.L.T. 277 (Tri.-Kol.) 3. Sh. S.K. Shukla, Ld. AR appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the appellant since not submitted any docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents as cess on finalisation of RT-12 returns under Rule 173-I. The Revenue is aggrieved with the fact that though the original refund claim was filed by the respondents well within time, the proper refund claim in prescribed format was filed after directions from the Revenue and after a period of six months. After seeing the Asstt. Commissioner's order we fully agree with him that the first staking of refund claim which may not be in proper format has to be considered as the date for the purposes of limitation. We also find that the Asstt. Commissioner has observed that the said refund claim was made much before finalisation of assessments made under Rule 173-I. Accordingly, he has allowed the adjustment to be made. The Commissioner (Appeals) has rejected the appeal filed by the Revenue on the ground that there was no proper authorization by the Commissioner under the provision of Section 35E(2). Apart from contending in the memo of appeal that such authorization has been given on the file and directions have been given to the Asstt. Commissioner to file an appeal no authorization has been shown to us. As such in view of the foregoing we do not find any merits in the Revenue's app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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