TaxTMI 
TaxTMI 
2010 (12) TMI 88
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Central Excise Act read with Notification No.23/2003-CE dated 31/03/2003. The total amount of duty so paid by the respondent included BED amounting to Rs.1, 24, 57,866/- and Education Cess amounting to Rs.2,34,194/-. In a letter dated17/01/2006, the Superintendent of Central Excise pointed out a mistake in the quantification of the duty paid on the above DTA clearances. The Superintendent stated that 2% Education Cess leviable on Customs duty had not been taken into account in the quantification of duty of excise. He clarified that appropriate amount of duty on DTA sale should have been worked out as 50% of the aggregate of duties of Customs viz., BCD + CVD + 2% Education Cess on CVD + 2% Education Cess on total....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p; This proposal was contested. In adjudication of the dispute, the Assistant Commissioner rejected the refund claim as time-barred. In an appeal subsequently filed by the party against the Assistant Commissioners order, the learned Commissioner (Appeals) set aside the Assistant Commissioners order and allowed the appeal with consequential relief to the appellant (present respondent). Hence the present appeal of the Revenue. 2. The learned SDR submits that the amount claimed as refund had been paid on 24/07/2006, that the refund claim was filed on 16/08/2007 beyond a period of one year, that the above payment of duty was not under protest and that the amount so paid by the party was not to be considered as a deposit. On....
X X X X Extracts X X X X
X X X X Extracts X X X X
....td., Vs. CCE, Ghaziabad 2010 (249) ELT 408 (Tri-Del) wherein an amount deposited by the assessee during the course of investigation was deemed to have been made under protest and accordingly it was held that the time-bar provisions of Section 11B of the Central Excise Act were not applicable to the assessees claim for refund of the said amount. Though he has filed a compilation of decisions, he has not brought out any other relevant case law. 4. I have considered the submissions. The twin questions arising for consideration are limitation and unjust enrichment. It is not in dispute that an amount of Rs.2,73,621/- was paid by the respondent by way of debit in CENVAT account towards differential duty and Education C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isions of the Central Excise Act. On the other hand, they worked out the differential amount of duty for the aforesaid period by making use of the above formula and paid the same voluntarily from their CENVAT account on24/07/2006. The case of the respondent presently is that the cause of action for their refund claim dated16/08/2007was the show-cause notice dated02/08/2007issued by the department for recovery of differential duty on DTA clearances of the month of July 2006. It would mean that, had the show-cause notice not been issued, the refund claim would not have been filed. The learned Consultant has made an endeavour to justify the appellate Commissioners view, which is based on cause of action. I can hardly ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id not choose to file any appeal. Therefore, whatever happened subsequently, whether or not on account of the conduct of the department, would not constitute any ground for holding the above payment of differential duty as a payment under protest. The assessees plea for treating the amount as a deposit is equally questionable. It is not in dispute that the amount was paid as differential duty and Education Cess on DTA sales of the period of dispute. Again, it is not in dispute that the payment was made by way of debit in CENVAT account. Therefore, it is not open to the respondent to argue that what they paid on24/07/2006was not an amount of duty/education cess but a mere deposit. 6. In the result, the time-b....