TaxTMI 
TaxTMI 
2016 (6) TMI 1194
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....sformers, current transformers, etc. Pursuant to a show cause notice, wherein, a differential duty to the extent of Rs. 73,79,782.67 was demanded from the assessee, adjudication proceedings followed, in which, by Order-in-Original No. 60/88, dated 10-10-1988, a demand of Rs. 8,35,697.20 and a penalty of Rs. 1,00,000/- was confirmed on the assessee. It is relevant to note that, during the pendency of the adjudication proceedings, as against the demand of Rs. 73,79,782.67, the assessee paid an amount of Rs. 7,50,000/- through a debit PLA entry dated 24-3-1987. Thereafter, on receipt of the adjudication order passed against it, the assessee preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal which, by an order dated 14-2-1991, allowed the appeal by setting aside the demand and remanding the matter to the Original authority for fresh adjudication. In the de novo proceedings that ensued, the adjudicating authority passed Order-in-Original No. 33/1992, dated 17-11-1992 confirming the demand to an extent of Rs. 7,62,426/- and imposing a penalty of Rs. 1,00,000/- on the assessee. The assessee, therefore, preferred an appeal against the said order before the....
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....s. v. Union of India & Ors. [(1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.)], where, a larger bench of the Supreme Court had found as follows with regard to the requirement of filing applications under Section 11B, as it stood after the amendment in 1991. 91. A good amount of debate took place before us on the question whether sub-section (3) makes Section 11B exhaustive of all kinds of refund claims including those which are refundable as a consequence of appellate/revisional order and/or as a consequence of orders made by the High Court/Supreme Court. Shri Nariman pointed out that in Rule 11 (as it was in force during the period 6-8-1977 to 17-11-1980), sub-rule (3) expressly provided that "where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf" and that sub-section (3) of Section 11B, before its amendment in 1991, was also in identical terms. But, Shri Nariman says, sub-section (3) of Section 11B has now been dropped; there is no corresponding provision in Section 11B as it now stands, which means, s....
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....on in the case of refund claims arising as a result of the decision in appeal/reference/writ petition. There is no reason why an exception should be made in favour of such claims which would nullify the provision to a substantial degree. So far as "lack of incentive" argument is concerned, it has no doubt given us a pause; it is certainly a substantial plea, but there are adequate answers to it. Firstly, the rule means that only the person who has actually suffered loss or prejudice would fight the levy and apply for refund in case of success. Secondly, in a competitive market economy, as the one we have embarked upon since 1991-92, the manufacturer's self interest lies in producing more and selling it at competitive prices - the urge to grow. A favourable decision does not merely mean refund; it has a beneficial effect for the subsequent period as well. It is incorrect to suggest that the disputes regarding classification, valuation and claims for exemptions are fought only for refund; it is for more substantial reasons, though the prospect of refund is certainly an added attraction. It may, therefore, be not entirely right to say that the prospect of not getting the refund would ....
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....ing to Section 11B and the expression "relevant date" has been defined in clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that "the limitation of six months shall not apply where any duty has been paid under protest". Now, where a person proposes to contest his liability by way of appeal, revision or in the higher Courts, he would naturally pay the duty, whenever he does, und....
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....we find force in the contention of the learned counsel for the assessee, in that, we note that although the assessee had made a payment of Rs. 7,50,000/- towards the duty demand raised on it in 1987, in the adjudication proceedings that ensued, the demand was set aside by the Appellate Tribunal, which remanded the matter for fresh adjudication. In the de novo adjudication proceedings that followed, although there was a demand to an extent of Rs. 7,62,426/- raised on the assessee, the assessee had carried the matter in appeal before the Appellate Tribunal, where, in a waiver of pre-deposit application, the Appellate Tribunal recognised the payment of Rs. 7,50,000/- as a pre-deposit of the duty demand that subsisted against the assessee at that point in time. It was later, through the final order dated 8-2-1998 that the appeal itself was allowed, and the assessee held entitled to a refund of the amount. We note that the refund claim preferred by the assessee is dated 1-7-1998, which is less than three months after the date of the final order of the CESTAT (21-4-1998) and, further, insofar as the amount sought to be refunded was one that was recognised by the CESTAT as a pre-deposit o....