TMI Blog2004 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... h incidentally is not available in the Paper book. The claim is for Rs. 27,32,347/-. The period in which the excess amount paid was 1989-90. The excess duty paid itself arose out of a classification dispute M/s. PPI were manufacturers of HDPE tapes fabrics bags (sacks). They claimed classification of their goods under Chapter Headings 5406, 5408 6301 respectively and were clearing them on payment of duty. However by their letter dated 22-6-1989, received in the Central Excise office on 3-7-1989, the respondents claimed classification of HDPE Tapes under Chapter 39 of CETA but all the same were paying duty applicable to goods falling under Chapter 5406 under protest. This letter of protest along with another one was disposed off by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim was filed on 13-9-1994; and [ii] The entire claim of Modvat credit, which was required to be taken within a reasonable period of 6 months after O-I-A dated 30-5-1991 was passed in their favour, is hit by time bar for the same reason. (claim made on 13-9-1994); and [iii] The remaining amount of refund claim is not allowed on the ground of unjust enrichment as per Section 11B of the Act; and [iv] So far as the amount of Bank Guarantee encashed for Rs. 3,20,000/- is concerned the ground is that the assessee has not produced any evidence to show that they had reduced the price of fabrics sacks cleared during relevant period and hence they appear to have passed on the burden of prospective duty liability to the buyers in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of each appeal. In regard to the respondent's appeal he observed thus :- "At this stage, I may briefly revert to the individual objections in the case of the said appeals. In the case of M/s. Plas Pack Industries referred in appeal No. 617A/97, part claim has been rejected on the ground of time bar, although the protest letter is claimed to be submitted for the period under dispute. The claim for refund/adjustment of Modvat credit should be regulated from the date of filing of the protest with the department and the payment of duty under protest and no time bar shall be applied for the period under dispute. Similarly in the ratio of the judgments cited earlier, appellants claim for Modvat credit sans the ground of limitation during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard a kind reference is invited to the Court-room highlights reported at page No. A160 of 1995 (76) E.L.T. in which case the Supreme Court has stayed the operation of High Court's order directing revenue to examine the refund claim de hors the provisions of Section 11B. It, therefore, follows that the modvat claim allowed by the appellate authorities is required to be considered by keeping in provisions of law in force. In the instant case, when the protest of the party was accepted and the product was held to be classified under Chapter 39 as per O-I-A dated 30-5-1991 as mentioned herein before, the party should have filed claim for modvat within 6 months as per Rule 57G/57H but they have not done so within stipulated time limits and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty has to be vacated by the Department by passing an appealable order. There cannot be any automatic vacation of the protest. In the present case the Assistant Commissioner passed appealable order way back in 91 vacating the protests. The above-cited case does not help the respondent. 10. There is no gain saying the fact that the claim for refund/Modvat credit was made 3 years after the respondent succeeded in appeal against rejection of his claim by the Assistant Commissioner. The Commissioner's direction that the entire claim be given/sanctioned as Modvat credit irrespective of the time that has elapsed between the passing of the order in the respondents favour and the actual claim is not tenable. The Revenue's stand that the claim i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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