2018 (1) TMI 408 - AT - Central Excise

Tribunal rules on Central Excise Act limitation period, remands for Supreme Court jurisdiction decision.

M/s. Dhariyal Chemicals Versus Commissioner of Central Excise & ST, Ahmedabad

The Tribunal held that the limitation period under Section 11B of the Central Excise Act did not apply in this case due to ambiguity regarding the ... Refund of terminal excise duty - time limitation - whether the refund claim filed by the appellant before the Central Exciseofficer is barred by limitation or not, in terms of Section 11B of the Act? - Held that: - it is a fact on record that on the invoices it is mentioned by the appellant that terminal excise duty is refundable to them and the dispute arose only after issuance of circular by DGFT on 15.03.2013 that which authority is required to entertain the refund claim of terminal excise duty - bar of limitation is not applicable to the facts of this case. The matter is required to be remanded back to the adjudicating authority to keep the issue pending, till the Hon’ble Apex Court decide the issue whether the jurisdictional Central Excise is having the jurisdiction to entertain the refund claim filed by the appellant or not - appeal allowed by way of remand. Issues: Appeal against rejection of refund claim as time-barred under Section 11B of the Central Excise Act, 1944.Analysis:1. Facts of the Case: The appellant filed a refund claim for clearances made to Oil India Limited during September to December 2012, mentioning that the duty paid was refundable. The duty was to be refunded by DGFT, but a circular clarified that Central Excise department should handle such refunds. The refund claim was filed on 15.10.2014 and rejected as time-barred.2. Appellant's Argument: The appellant contended that the duty paid should be treated as paid under protest, citing a Supreme Court case. They argued that the time-limit under Section 11B should not apply, especially since there is ambiguity regarding whether DGFT or Central Excise office should handle the refund claims.3. Respondent's Argument: The respondent opposed, stating that the appellant failed to file the refund claim before the Central Excise office within the prescribed time after the circular was issued in 2013, justifying the rejection on grounds of being time-barred.4. Judgment: The Tribunal considered the issue of whether the refund claim was time-barred under Section 11B. Noting that the dispute arose after the DGFT circular, and with uncertainty regarding the authority to handle the refund claim pending before the Supreme Court, the Tribunal held that the limitation period should not apply in this case. The matter was remanded to the adjudicating authority to await the Supreme Court's decision on jurisdiction. If Central Excise has jurisdiction, the refund claim should be entertained within time; otherwise, the appellant can file with the appropriate authority. The appeal was disposed of accordingly.