2016 (12) TMI 1448

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.... not attracting duty and therefore the respondent liable for payment of duty on their intermediate product i.e. GPC. The demand proceeding of GPC by the department was carried out during which the respondent has deposited an amount of Rs. 1,53,91,800/- subsequently a Notification No. 51/2003-CEX (NT) dated 06.08.2003 was issued under Section 11C of Central Excise Act, 1944, by which the product GPC was exempted for captive use for retrospective effect and also entitled the respondent to claim the refund amount involved. Accordingly, the respondent filed a refund claim which was sanctioned by the Deputy Commissioner, Central Excise, Kandivali Division, Mumbai-V vide Order-in-Original No. 487/56/DCCEX/ KDN/04 dated 03.03.2004. Being aggrieved....

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....whether the refund allowed is proper and in order or otherwise? The fact which is not on dispute that Commissioner, Central Excise, Mumbai-V vide his order-in-original No. V-Adj (Ch.28)15-3/2004 dated 13.2.2004 a duty demand of Rs. 98,17,723/- on GPC for the period from 01.04.99 to 31.03.2001 has been dropped. The said order-in-original still, finds field as nothing contrary is produced on record. Similarly, demand on the disputed goods for the period from 03/2001 to 03/2002 is set aside by Commissioner (Appeals), C.Ex vide Order-In-Appeal No. SDK (257,to 259)/257.to 259/M- V/2003 dated 27.01.04, which is still valid and finds field as nothing contrary is produced. In the case of State of Kerala Vs M.K. Kunhikannan Nambiar [1996 I SCC 435] ....

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.... qualification of demand amount only. In the case of CCE Vs. M/s. Flack, (India) = 120, ELT 285 (SC), it was held that if order, of classification is not appealed against, it becomes final and it cannot be questioning the proceedings for refund. The same view was followed in M/s. Gokul Metalizers Vs. CCE [2001 (129) ELT 157 (CEGAT)]; M/s. Vayudoot Vs. CC [2001 (134) ELT 385 (CEGAT); M/s. Kopra Vs CCE [2002 (141) ELT 694 (CEGA T). Duty deposited should be refunded if matter remanded to adjudicating authority. If the appellate authority sets aside the order and remands the matter to adjudicating authority, the duty deposited pending appeal should be refunded. This is because once the order is set aside and matter remanded, there is no appeal ....

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....e with respect to C.Ex. duty only. The amount paid by the respondents is in the nature of deposit and hence, Section 11 B is not applicable. Hence, the question of limitation does not arise. The ratio of following Tribunal's orders will apply (a) M/s. Ambika Chemicals Vs.CCE [2002 (148) ELT 101 (T)]; (b) CCE Vs. M/s. Ravishankar Inds. Ltd. [2003 (106) ECR 76 (T)]; (c) M/s. Jayanta Glass Indus. Pvt. Ltd. Vs. CCE [2002' (50) RLT 98 (T)] ; (d) M/s. Parle International Ltd. Vs. UOL [2001 (127) ELT 329] ; (e) M/s. Suri Industries Vs. CCE [2001 (132) ELT 480 (T)] ; (f) M/s. Infar (India) Ltd. Vs. CENVAT credit, .New Delhi [2003 (l08) ECR 650 (T-LB)]. 06. The. amount was paid on 28.07.2001 and 03.08.2001 towards the alleged demand....

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....ed at the time of clearance, it can be claimed later by way of refund claim. Otherwise, Section 11B of Act would be confined only to cases where excess payment of duty is made purely by arithmetical mistake. In the case of M/s. Burroughs Welcome Vs. CCE [2001 (129) ELT 540 (CEGAT)], it was held that failure to claim benefit of exemption notification cannot debar importer from c1aiming it later. An exemption can be claimed later even if it is not declared at the time of declaration of classification, as there is no estoppel against law. M/s. Gujarat State Fertilizers Co. Ltd. Vs. CCE [1996 (13) RLT 219 (CEGAT 3 member bench]. The ratio of above orders is squarely applicable in the instant case. Regarding C.A. certificate, it reveals that thi....