2008 (11) TMI 212 - AT - Central Excise

Refund claim time-barred under Section 11B, Tribunal rules. Commissioner's decision overturned.

The Commissioner (Appeal) initially allowed the respondent's refund claim, stating that the limitation period under Section 11B was not applicable. ... Payment under protest - limitation for refund claims under Section 11B - commencement of limitation from date of final decision in assessee's own casePayment under protest - limitation for refund claims under Section 11B - commencement of limitation from date of final decision in assessee's own case - Whether the respondent's refund claim was barred by limitation under Section 11B. - HELD THAT: - The Tribunal examined whether the one year limitation for filing a refund claim under Section 11B began to run from the date of payment or from the date of the final appellate decision in the assessee's favour. Relying on the Supreme Court's decision in Dena Snuff (P) Ltd. v. CCE, Chandigarh and the discussion in Mafatlal Industries Ltd. v. Union of India, the Tribunal held that where duty has been paid 'under protest', the period of limitation commences from the date of the final decision in the assessee's own case. In the present case the Commissioner (Appeal) had set aside the adjudicating authority's order on 26-3-04; accordingly that date was the relevant date to compute the one year limitation. The refund claim was filed well beyond one year from 26-3-04 and was therefore time barred. The Tribunal rejected the respondent's contention that the limitation provision did not apply or that a later amendment (to Explanation B) should be applied retrospectively, and concluded that the Deputy Commissioner's rejection as time barred was correct in law.Refund claim is time barred as the one year limitation under Section 11B runs from the date of the final appellate decision (26-3-04); impugned appellate order allowing the refund was set aside and revenue appeal allowed.Final Conclusion: The Tribunal allowed the revenue appeal, holding that the refund claim was barred by limitation because the one year period under Section 11B ran from the date of the Commissioner (Appeal)'s order of 26-3-04; the impugned order permitting the late refund was set aside. Issues:1. Central Excise Duty evasion and penalty imposition.2. Appeal against rejection of refund claim based on limitation period under Section 11B.Analysis:1. The case involved the respondent manufacturing marble slabs without paying Central Excise Duty, leading to a duty evasion case against them. The Additional Commissioner confirmed the duty demand, interest, and penalty under Section 11AC. However, the Commissioner (Appeal) later held, following a Supreme Court judgment, that the activity was not excisable, and marble slabs were not chargeable for excise duty. Subsequently, the respondent filed a refund claim, which was rejected as time-barred by the Deputy Commissioner, citing the limitation period under Section 11B. The Commissioner (Appeal) allowed the appeal, stating that the limitation was not applicable. This decision was challenged in the appeal of the revenue.2. The departmental representative argued that the limitation period for filing the refund claim should be calculated from the date of the order-in-appeal in the respondent's favor. Citing a Supreme Court judgment, it was contended that the limitation would start from the final decision in the Assessee's own case. The respondent's counsel, on the other hand, asserted that since the duty was paid under protest, the limitation period would not apply. Referring to another Supreme Court observation, it was argued that the limitation provisions would not be applicable in cases ending in court judgments. The Tribunal, after considering the submissions, disagreed with the respondent's contention. It held that the limitation period would start from the date of the final decision by the CCE (Appeals) in the respondent's favor. As the refund claim was filed beyond the one-year limitation period from that date, it was deemed time-barred. Consequently, the impugned order allowing the appeal was set aside, and the Revenue's appeal was allowed.