2017 (6) TMI 755 - AT - Central Excise

Appeal allowed for refund claim under protest not barred by limitation

M/s. Uttar Haryana Bijli Vitran Nigam Ltd. Versus CCE, Panchkula

The Tribunal allowed the appeal filed by M/s. Uttar Haryana Bijli Vitran Nigam Ltd., holding that the refund claim was not barred by limitation as the ... Refund of excess excise duty paid on account of addition of margin of notional profit @ 10% - rejection on the ground of limitation as the appellant did not file letter of protest under Rule 233B of CER, 1944 - Held that: - when the duty was paid, the proceedings were still going on. Even though, they had filed RT-12 returns, gate passes and invoices by affixing the stamp ED paid under protest, the claim was rejected on the ground that the specific procedure was not followed - There are conflicting judgements of this Tribunal on the admissibility of such marking on the documents. However, the fact remains that litigation proceedings for the period 1991-92 were going on. Similar issue covered by the decision in the case of CCE, Chennai-II vs. Electro Steel Castings Limited [2013 (8) TMI 199 - MADRAS HIGH COURT] that payment of duty made only during the pendency of appeal against very levy of duty for the earlier period is deemed to be under protest and no limitation is applicable. Refund not hit by limitation bar - appeal allowed - decided in favor of appellant. Issues:Refund claim rejection on the ground of limitation due to non-compliance with Rule 233B of Central Excise Rules, 1944.Analysis:The case involved a refund claim filed by M/s. Uttar Haryana Bijli Vitran Nigam Ltd. amounting to Rs. 9,65,944/- for excess excise duty paid during the period 1.8.1993 to 31.8.1996. The claim was rejected by the Assistant Commissioner and the Commissioner (Appeals) on the basis of limitation as the appellant did not file a letter of protest under Rule 233B of Central Excise Rules, 1944. The Tribunal had earlier remanded the matter back to the adjudicating authority, which again rejected the claim for non-compliance with Section 233B. The appellant contended that the duty payment was under protest as the proceedings for the earlier period were still pending before the Tribunal, citing relevant case laws and judgments supporting their argument.The appellant supported their case by referring to the judgment of the Hon'ble Madras High Court in the case of CCE, Chennai-II Vs. Electro Steel Castings Limited, stating that duty payment during the pendency of an appeal against the levy of duty is deemed to be under protest, thus not subject to limitation. They provided evidence of marking protest on gate passes, invoices, and RT-12 returns. The appellant also relied on a previous Tribunal judgment to strengthen their argument regarding the treatment of duty paid under protest.On the other hand, the learned AR argued that the specific procedure under Rule 233B had to be followed for lodging a protest, and the marking on gate passes and invoices did not comply with the prescribed procedure. They referred to a judgment of the Tribunal in another case to support their contention.After hearing both parties and examining the records, the Tribunal acknowledged that the refund claim was filed during the pendency of proceedings for the earlier period, which was decided in favor of the appellant. Citing the judgment of the Hon'ble Madras High Court and analyzing relevant Supreme Court decisions, the Tribunal concluded that the payment made under protest during the appeal against the levy of duty is not subject to limitation. Therefore, the Tribunal set aside the order of the Commissioner (Appeals) and allowed the appeal filed by the appellant.In conclusion, the Tribunal found that the refund claim was not barred by limitation as the duty payment was deemed to be under protest. The order of the Commissioner (Appeals) was set aside, and the appeal filed by the appellant was allowed.