AI Drafter 
TaxTMI 
TaxTMI 
2024 (10) TMI 1054
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....plicable in this case not. The contention of the appellant is that in such a case, the limitation period will not apply. I do not agree with this contention. The Hon'ble Supreme Court in para 5 of its judgment in the case of Dena Snuff (P) Ltd. v. CCE, Chandigarh 2003 (157) E.LT. 500 (S.C.) after considering the Hon'ble Supreme Court's judgment in case of Mafatial Industries Ltd. v. Union of India (supra) has held that even when the duty has been paid under protest, the period of limitation would be start to run from the date of the final decision in the assessee's own case. In this case, the duty had been paid by the appellant voluntarily prior to the issue of the show cause notice and subsequently the demand was dropped by the Additional Commissioner, Central Excise, Kanpur and the order was not challenged before Hon'ble Tribunal Allahabad. Even if the payment of duty prior to adjudication order passed by the Additional Commissioner is treated as payment under protest, the protest ceases to exist once the Additional Commissioner's order dated 19.06.2017 was not challenged by the department. Therefore, in view of the Hon'ble Supreme Court's order in....
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....004 - Refund claim filed after expiry of two years - Duty paid prior to SCN, before adjudication - Even if said payment is treated as protest payment, protest ceases to exist once Additional Commissioner's Order set aside by Commissioner (Appeals) on 26-3. 2004 - Relevant date for computing period of one year would be 26-3-2004 - Refund time barred - Revenue's appeal allowed - Section 11B of Central Excise Act, 1944. - The Hon'ble Supreme Court in para 5 of its judgment in the case of Dena Snuff (P) Ltd. (2003 (157) B.LT. 500 (S.C.)] after considering the judgment in case of Mafatlal Industries Ltd. (1997 (89) E.LT. 247 (S.C.)] has held that when the duty has been paid under protest, the period of limitation would start to run from the date of the final decision in the assessee's own case. [para 4] 4.3.3 The Hon'ble Tribunal South Zonal Bench, Chennai in the case of REDINGTON INDIA LTD Vs Commissioner of Customs Chennai [2011 (269) E.L.T. 233 (Tri. - Chennai)) held as under: Refund - Limitation - Protest payment - Duty paid under protest on 27-12-2006 - Dispute decided on merits on 24-5-2007 and refund claim filed on 21-2-2008 - Refund denied a....
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....11 whereas refund claim was filed after almost more than four years hence, the same is clearly time-bar". 4.5 Thus, following the judicial pronouncement as well as discussion made in the foregoing paras, I hold that the impugned order passed by the Assistant Commissioner, CGST & Central Excise, Division-I Kanpur rejecting refund to the appellant is legal & proper and liable to be sustainable. 5. In view of the above, I upheld the impugned order dated 26.11.2020 of the adjudicating authority & reject the appeal filed by the appellant." 2.1 The Appellant have during the course of investigation deposited certain amount by two Challans dated 03.06.2014 & 09.06.2014. After completion of the investigation a show cause notice dated 23.05.2017 was issued to the Appellant but the proceedings were dropped by the first adjudicating authority namely the Additional Commissioner, Central Excise, Kanpur vide Order-In-Original No.20/ADC/CEX/2017 dated 19.06.2017. 2.2 Subsequent to the dropping of the proceedings so initiated, Appellant filed a refund claim on 31.01.2020 seeking refund of Rs.5 lakhs deposited by them vide above referred challans dated 03.06.2014 and 09.06.20....
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....er of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) .....; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) ......; (d) the duty of excise and interest, if any paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) ......; (f) .......: Provided ...... (3) ...... (4) ....... (5) ...... ^19[Explanation.-- ....
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....f payment of duty. 4.5 From the perusal of the above section it is evident that amount claimed as refund which is attributable to unutilized balance in the account current could never have been hit by the limitation clause or clause of unjust enrichment. In the case of Deccan Shoppe Pvt. Ltd. [2020 (37) G.S.T.L. 185 (Tri. - Hyd.)] Hyderabad Bench has held as follows: "10. The questions to be considered in this case are as follows : (1) Whether the deposits made through challans which have not been utilized towards payment of duty can be claimed as refund under Section 11B; (2) Whether in such cases, the provisions of Section 11B apply in toto or otherwise; and (3) What is the relevant date of reckoning the time limit in such cases? 11. As can be seen from clause (b) to proviso to sub-section (2) of Section 11B unspent advance deposits lying in balance in applicant's current account are covered by Section 11B. Once they are covered by Section 11B it is not open for anyone to pick and choose which portion of Section 11B applies to them and which does not. The entire provisions of Section 11B apply in the absence of any specific clause i....
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....PLA balance is duty. He has recorded that the said provision has been incorporated as an abundant precaution to ensure that even by mistake, the provision of unjust enrichment is not applied for such refund. He also records that since there is a specific provision for refund of PLA balance under Rules 9(1A) and 173G(1A) of the said Rules, therefore, such refund would be squarely covered under the said Rules and not under Section 11B of the Central Excise Act, 1944, which applies only for refund of duty. He has, therefore, recorded that the provisions of Section 11BB of the Central Excise Act, 1944 granting interest for delayed refund of duty is not attracted in the present case. 3. After hearing, perusal of the records and relevant provisions as mentioned above, I do not find any legal infirmity in the Order passed by the Commissioner (Appeals) so far as the applicability of Rule 9(1A) and Rule 173G(1A) of the Central Excise Rules, 1944, is concerned. The appeal filed by the appellant is, therefore, dismissed." • Jay Shree Tea & Industries Ltd. - 2005 (190) E.L.T. 106 (Tri. - Kolkata) '3. Ld. JDR supports the impugned order. A clarification was issued....
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....appellants has submitted that there is only limited issue in these appeals to examine whether un-utilised deposit in PLA can be refunded to the depositor or not and whether such deposit is covered by Section 11B of the Central Excise Act, 1944. 2. Facts of the case throws light that the appellants had made deposit of Rs. 50,000/- (Rupees Fifty thousand only) on 31-12-2002 in United Bank of India (UBI), Siliguri towards discharge of the duty payable for removal of excisable goods. On 28-2-2003, there was an un-utilised deposit amount of Rs. 14,251/- to the credit of the appellants and when the appellants made an application for refund of such amount by virtue of exemption of duty on Tea & Tea Waste w.e.f. 1-3-2003, the claim of the appellants was denied. 3. Ld. DR for the Revenue submitted that if any refund of duty is claimed under Central Excise Act, 1944, due process of law as required under Section 11B of Central Excise Act, 1944, should be followed and the authorities have rightly rejected claim for the appellant. Meeting to such point, the Ld. Counsel has submitted that the Central Board of Excise & Customs has already issued instruction vide F. No. 202/24/72....