2018 (11) TMI 1143

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dication paid an amount of Rs. 38 lakhs. He submits that the demand came to be set aside. Therefore, there is no consequential refund. He That since the amount was paid before the Adjudication, it is a deposit and not the duty. Therefore, the refund in respect of any amount which is a deposit will not be governed by section 11B. Hence, the provision of unjust enrichment is not applicable. In his support, he placed reliance on the various judgements cited below: 1. CC (Import) Vs. Finacord Chemicals (P) Ltd. 2015 (319) ELT 616 (SC) 2. CCE Vs. Sandvik Asia Ltd. 2017 (52) STR 112 (Bom.) 3. CCE Vs. J.M. Baxi & Co. 2011 (271) ELT 19 (Guj.) 4. Parle International Ltd. Vs. UOI 2001 (127) ELT 329 (Guj.) 5. Gujarat Insecticides Ltd. Vs. UOI 2005 (183) ELT 9 (Guj.) 6. CCE Vs. Pricol Ltd. 2015 (320) ELT 703 (Mad.) 7. CCE Vs. UCAL Fuel System Ltd. 2014 (306) ELT 26 (Mad.) 8. Nelco Ltd. Vs. UOI 2002 (144) ELT 56 (Bom.), 2002 (144) ELT A104 (SC) 9. Suvidhe Ltd. Vs. UOI 1996(82) ELT 177 (Bom.), 1997 (94) ELTA159 (S.C.) 10.Indian Thermoplastics (P) Ltd Vs. CC 2003 (57) RLT 121 (Cegat-LB) 11. Aadishwar Motors (P) Ltd. Vs. Commr. Of ST 2014 (33) STR 329 (T) 12. CC Vs. Mahalaxmi Exports 2....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... the identical facts, the Hon'ble Bombay High Court in the judgment cited by ld. Counsel, in case of refund, in respect of duty paid on short imported goods held that limitation under Section 27 is not applicable. However, the Hon'ble Supreme Court in various judgments held that all the refund claims of customs and excise has to be governed by Section 27 of the Customs Act or Section 11B of the Central Excise Act, 1944. In the case of Collector of Central Excise, Chandigarh vs. Doaba Co-operative Sugar Mills - 1988 (37) E.L.T. 478 (S.C.), the Hon'ble Apex Court held as under:- "6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhere....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....- 1997 (89) ELT 247 (SC) has endorsed the aforesaid judgment in the case of Doaba Co-operative Sugar Mills (supra). In the case of UOI vs. Namdang Tea Estate - 2004 (164) ELT 132 (SC), the Hon'ble Supreme Court held that claim filed beyond the stipulated time is not admissible. In the case of UOI vs. VIP Industries Limited - 1998 (101) ELT 8 (SC) the Hon'ble Supreme Court in the facts of the case held that assessee filing refund claim for past four years following a favourable decision on classification in the case of a manufacturer of similar goods, set-aside the Hon'ble High Court order which directed the Assistant Commissioner to consider the claim for beyond limitation period without taking into consideration the question of limitation. Accordingly, the High Court judgment was set-aside. In the case of Porcelain Electrical Manufacturing Company vs. Collector of Central Excise, New Delhi - 1998 (98) ELT 583 (SC), the Hon'ble Supreme Court held that refund claim filed before the departmental authorities to be governed by the time limit provided under the statute, general law of limitation not available. The decisions where assessee has invoked extraordinary jurisd....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....der, we find that the issue on merits was already decided in favour of the appellant by the Commissioner (Appeal) vide order dated 04.12.2013, thereafter, the appellant became eligible for refund. Even though the department had filed appeal against the Commissioner (Appeal) order before the Tribunal but since no stay was granted, the departmental authority was bound to sanction the refund claim in terms of CBEC Circular 572/9/2001-CX dated 22.02.2001. The relevant para of the Circular is reproduced as under:- "(3) The cases where refund arises due to order of Commissioner (Appeals) or Commissioner of Central Excise/Customs and decision is taken to contest them before CEGAT. In such cases appeal/stay application should be filed expeditiously well before the expiry of stipulated period of three months (and not waiting for the last date of filing of appeal). However, no refund/rebate claim should be withheld on the ground that an appeal has been filed against the order giving the relief, unless stay order has been obtained. It would be the responsibility of the concerned Commissioner to obtain stay order expeditiously where the orders passed by Commissioner (Appeals) suffer from....