TaxTMI 
TaxTMI 
2022 (11) TMI 337
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.... Sugar Ltd. reported in 2015 (322) ELT 769 (SC) held that bagasse and press mud are non-excisable products and that no duty is payable on these items. Consequently, they sought for refund of the credit that has already been reversed. After due process of law, the refund sanctioning authority rejected the refund as time-barred under the provisions of sec. 11B of the Central Excise Act, 1944 as the credit has been reversed between 1.5.2010 and 1.5.2013 whereas the refund claim has been filed only on 19.9.2014 which is beyond one year. Aggrieved by such order, the appellant filed appeal before Commissioner (Appeals) who vide order impugned herein upheld the same. Hence this appeal. 2. On behalf of the appellant, learned counsel Shri M.N. Bharathi appeared and argued the matter. He submitted that the refund claim pertains to the period 1.4.2010 to 1.5.2013. The appellant had not been maintaining separate accounts for the common inputs and input services used in the manufacture of sugar. The department was of the view that bagasse and press mud which emerged during the process of manufacture of sugar are exempted products and therefore the appellant has to maintain separate accounts ....
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.... (Tri. All.) and CCE Vs. Nasik SSK Ltd. reported in 2017 (358) ELT 664 (Tri. Mum.) and argued that very same issue was considered by the Tribunal in the above cases. It was held that limitation would not be applicable. He prayed that the appeal may be allowed. 6. The learned AR Shri M. Ambe supported the findings in the impugned order. He submitted that the refund claim was rejected as time-barred in terms of sec. 11B of the Central Excise Act. The Hon'ble Supreme Court in the case of CCE Vs. Doaba Cooperative Sugar Mills reported in 2002-TIOL-426-SC-CX has held that in making claims for refund the 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 adhered to. Hence the refund claim filed by the appellant comes under the purview of sec. 11B of the Central Excise Act and is hit by the limitation prescribed under such section. He submitted that in Triveni Engineering and Industries Ltd. (supra), the Tribunal held that bagasse and press mud not are dutiable item and not manufactured item, the credit reversed under protest by the appellant therein is not hit by the limitat....
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....imate or inform their protest is by issuing a letter to the department that they are paying the amount are disputing the payment made. The intimation given by assessee would show that they have made the payment under protest. It is also seen that, later a Show Cause Notice has been issued to the appellant demanding 5% / 6% payment in regard to the common input and input services used in the manufacture of bagasse and press mud alleging that these are byproducts. The demand raised in the Show Cause Notice was higher than the amount reversed by the appellant; but included the amount reversed. The said demand was dropped by the department vide Order in Original dated 29.3.2017. In para 4 of the said Order in Original, the contention raised by the appellant that they have already paid some amount and the same has to be adjusted to the demand is noted by the adjudicating authority. The demand in the Show Cause Notice was over and above the credit that has already been reversed by the appellant. The original authority followed the decision of the Hon'ble Supreme Court in the case of DSCL Sugar Ltd. (supra) and held that these items namely bagasse and press mud being non-excisable pro....
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....ne year from the date of judgment/discussion/order or direction of the appellate Tribunal/Court. Accordingly, he held that the refund application was hit by limitation. Being aggrieved, the appellant preferred appeal before Learned Commissioner (Appeals) who was pleased to uphold the findings of the Assistant Commissioner, rejecting the appeal. 5. Being aggrieved, the appellant-assessee preferred appeal before this Tribunal. The Learned Counsel urges that as it have been held by the Hon'ble Tribunal, as aforementioned in their own case and also subsequently by Hon'ble Supreme Court in the case of Union of India v. DSCL Sugar Ltd. - 2015 (322) E.L.T. 769 (S.C.) that Bagasse being only an agricultural waste and not being a result of any process, not covered in definition of manufacture under Section 2(f) of the Act and there being no Chapter note or Section note in the Central Excise Tariff declaration process in respect of Bagasse as amounting to manufacture. Thus, notwithstanding the amendment in 2008 in Section 2(d), creating a fiction of deemed marketability, Bagasse is not excisable, as it does not pass through the test of manufacture. Accordingly, whatever amount the a....