TaxTMI 
TaxTMI 
2013 (1) TMI 102
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....nt Collector, the respondent preferred appeal to the Collector (Appeals) and the latter held the goods to be classifiable under Heading 54.02 and set aside the order of the lower authority by Order-in-Appeal No. 80/94 dated 9.11.1994. The Department s appeal (No. E/99/95) against this Order-in-Appeal was disposed of by the Tribunal in Final Order No. 553/2001 dated 19.4.2001 remanding the classification dispute to the Commissioner (Appeals) for fresh consideration. On the party s request, the Commissioner (Appeals) dismissed their appeal as withdrawn vide Order-in-Appeal No. 73/2001 dated 30.7.2001, whereby the classification (Heading 56.06) ordered by the Assistant Collector vide Order-in-Original No. 55/93 came to hold the field. 2. At the commencement of the classification dispute, that is, on the date (19.12.1990) on which the revised classification list was filed by the respondent, the effective rates of duty applicable to Heading 54.02 and 56.06 were nil and 15% ad valorem respectively. Later on, on account of budgetary changes in 1994, goods falling under Heading 54.02 became chargeable to duty at the rate of 20%, 30%, 50% and 60% , as the case may be, while the ra....
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....7.9.94 to 30.3.95. 4. Against Order-in-appeal No. 45/96 dated 26.2.96, the respondent filed Appeal No. E/488/96 with this Tribunal praying that the period of six months under Section 11A ibid be reckoned from the date (14.6.95) of the show-cause notice and not from the date (30.3.95) of the Range Officer s letter, and the department preferred Appeal No. E/837/96 to this Tribunal contending that the assessee was liable to pay differential duty for the whole period (that is, from 1.3.94 onwards) covered by Order-in-Original No. 55/93 dated 30.11.93. Both these appeals were disposed of by this Tribunal by a common order viz. Final Order No. 281 & 282/2000 dated 23.2.2000 holding that, as per the Hon ble Supreme Court s judgment in CCE Vs. Cotspun Ltd. 1999 (113) ELT 353 (SC), the assessee was not liable to pay any duty for any period prior to the date (14.6.95) of issue of the show-cause notice. 5. Aggrieved by the above final order of this Tribunal, the department raised a few questions of law and filed RCP Nos. 27 and 28/2001 with the Hon ble Madras High Court under Section 35H(1) of the Central Excise Act praying for a direction to this Tribunal to state a case ....
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....1 & 282/2000 dated 23.2.2000 was passed by this Tribunal, the respondents filed a claim for refund of the above amount, which was rejected by the Deputy Commissioner of Central Excise vide Order No. 49/2000 dated 1.6.2000 in view of the amendments brought to Section 11A of the Central Excise Act by the Finance Act, 2000. The Deputy Commissioner took the view that the said amendment validated past proceedings taken under Section 11A and consequently show-cause notice issued on 14.6.1995 for revising the classification of the goods to Heading 54.02 on the basis of Order-in-Appeal No. 80/94 dated 9.11.1994 and recovering differential duty of Rs.4,28,42,660/- from the assessee was valid and consequently the claim for refund of the duty already paid was liable to be rejected. Aggrieved by the Deputy Commissioner s decision, the respondent preferred an appeal to the Commissioner (Appeals) and the latter passed Order-in-Appeal No. 197/2003 dated 28.11.2003, the operative part of which reads as follows:- I have carefully gone through the facts and circumstances of the case. The refund claim for the refund of pre-deposit made under Section35F was rejected by the lower authority co....
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....deemed to have been validly issued notwithstanding anything contained in any judgment or order of any court, tribunal or other authority or any approval of previous classification list. In this connection, the learned Joint Commissioner (AR) has also cited certain judgments of the Hon ble Supreme Court wherein the aforesaid amendment to Section 11A(1) of the Central Excise Act was considered. Some of these decisions are:- (i) O.K. Play (India) Ltd. Vs. CCE, New Delhi 2005 (180) ELT 291 (SC) (ii) Anand Nishikawa Co. Ltd. Vs. CCE, Meerut 2005 (188) ELT 149 (SC) (iii) Collector Vs. BCL Forgings Ltd. 2005 (190) ELT 153 (SC) (iv) Commissioner Vs. Kalpana Chemicals Ltd. 2006 (197) ELT 319 (SC) Reliance has also been placed on the Tribunal s decisions in Godrej Hi-Care Ltd. Vs. Commissioner of Customs, Chennai 2007 (214) ELT 98 and Commissioner Vs. Sutlej Coach Builders (P) Ltd. 2012 (284) ELT 658. It has also been emphatically pointed out that the Hon ble High Court while considering the assessee s writ petitions did not accept their objections against the demand of duty based on classification of the goods under Heading 54.02. ....
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....on 11A(1) of the Central Excise Act by the Finance Act, 2000. 13. We have given careful consideration to the submissions and have also analyzed the effect of Section 110 of the Finance Act, 2000 and the relevant case law on the refund claim in question. We are unable to sustain the impugned order for the following reasons:- (a) Sub-section (1) of Section 11A of the Central Excise Act as amended by the Finance Act, 2000 reads as follows:- 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, (a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneous....
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....ollected during the period specified in Sub-section (1) on any excisable goods under the Central Excise Act, shall be deemed to be and shall be deemed to always have been, as validly levied, assessed or collected as if Sub-section (1) had been in force at all material times; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the refund of, and no enforcement shall be made by any court of any decree or order directing the refund of any such duties of excise which have been collected and which would have been validly collected if sub-section (1) had been in force at all material times; (c) recovery shall be made of all such duties of excise which have not been collected or, as the case may be, which have been refunded but which would have been collected or, as the case may be, would not have been refunded, if sub-section (1) had been in force at all material times. Explanation. - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. (underlinin....
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....sioner (Appeals) in their appeal against Order-in-Original No. 123/95 dated 16.11.95 is beyond the pale of doubt inasmuch as, in their letter dated 5.11.2001 to the Superintendent of Central Excise, they have themselves categorically admitted this position. We quote one paragraph from that letter:- We had appealed against the said Order-in-Original to the Commissioner of Customs & Central Excise (Appeals), Trichy as regards the quantum of duty demanded and the Commissioner (Appeals) had reduced the quantum of duty demanded in Order-in-Original No. 123/95 dated 16.11.95 vide his Order-in-Appeal No. 45/96 (MDU) dated 26.2.1996. Before this Tribunal, the assessee and the Revenue filed appeals, No.E/488/96 and No. E/837/96 respectively, both against the quantum of demand only. While the assessee wanted the duty to be quantified only for six months prior to 14.6.95 (date of the show-cause notice), the Revenue asked for duty for the entire period from 1.3.1994 covered by Order-in-Original No. 55/93 dated 30.11.93. No classification issue was anywhere in the picture. Obviously, this Tribunal was required to decide only the limitation issue and, following the Supreme Court s judgment....
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....o the reference can be stayed by the Tribunal itself as held by the Hon ble Delhi High Court vide M.M.T.C. Ltd. Vs. Commissioner of customs 2001 (130) ELT 33 (Del.) following the Hon ble Supreme Court s ruling in Commissioner of Income Tax Vs. Bansi Dhar & Others 1986 (24) ELT 193 (SC). (d) The refund claim of the respondent is found to be based on Final Order Nos. 281 & 282/2000 dated 23.2.2000 passed by this Tribunal. PART I of the refund claim addressed to the Deputy Commissioner of Central Excise, Tirunelveli, reads thus:- Please refer to the enclosed copy of the Final Order No. 281 & 282/2000 dated 23.2.2000 of the CEGAT, Chennai. As a result of the above Order, we are entitled to the following refunds. We have already held that the above Final Order of this Tribunal has not attained finality on account of the reference pending before the Hon ble High Court. Therefore, the refund claim filed by the respondent is premature also. (e) The learned Commissioner (Appeals) has held that the respondent is entitled to refund of predeposit as per certain circulars issued by the Board. Even if the payments made by the assessee are treated as pre....
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.... classification no demand could be issued for any period prior to the date of notice, not even for one year prior to the date of issue of SCN as provided in section 11A of Central Excise Act. For this finding Tribunal relied on the decision of the Hon. Apex Court in the case of Cotspun Ltd [1999 (113) ELT 353 SC]. But the effect of this decision of the Apex Court has been annulled by a retrospective amendment made by Finance Act, 2000, with effect from 17-11-1980, to the effect that in such situation demand for a period of one year prior to the date of issue of SCN is maintainable notwithstanding any decision of any court to the contrary. Obviously the decision of the Tribunal dated 23-02-2000 was given before the amendment was made. So the challenge to the demand confirmed by the Commissioner (Appeal) in order dated 26-02-1996 on the ground of time bar became not maintainable notwithstanding the decision dated 23-02-2000 of the Tribunal. This aspect is not examined in the impugned order of the Commissioner (Appeal) endorsing the grant of refund. 17. The appellant also has a defense that the classification of the goods has got settled under heading 56.06 under a separate proceed....