TaxTMI 
TaxTMI 
2025 (8) TMI 606
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....by Commissioner (Appeals) has modified the order of the Original Refund Sanctioning Authority (impugned order). 3. The issue, in brief, common to both the appeals is that the appellant filed a refund claim on the grounds that the payment of duty on their clearance to Domestic Tariff Area (DTA) was based on Maximum Retail Price (MRP) instead of transaction value. It was noticed by the Department, that they were initially paying duty on their DTA clearance based on transaction value for Basic Customs Duty (BCD) purpose and availed exemption under Notification No. 4/2006 dated 01.03.2006 (Sr. No. 47). However, in the course of Audit during April 2008, for the period April 2003 to March 2008, an objection was raised by the Department that the same should have been done in accordance with the MRP as the said goods were notified under Section 4A of Central Excise Act and it is alleged that the appellant had agreed to the audit objection of under valuation due to improper valuation method adopted and have also paid differential duty voluntarily. However, subsequently the appellant filed refund claim for said payments as per details as under: For period April 2007 to Aug 2009 Rs. 6,0....
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....of interest also a letter dated 25.03.2009 was submitted, whereas, the payment was made on 23.03.2009 and further noted that apart from these letters, they had not made any endorsement in Profit & Loss Account and ER-2 returns for the lump sum amount of duty payments indicating that they had paid duty under protest as was required under supplementary instructions issued by CBEC nor they had followed the procedure prescribed by the CBEC in as much as the Profit & Loss Account extracts, ER-2 returns and GAR challans submitted by them along with their refund claim did not indicate any evidence that they have paid the differential duty under protest. He has also relied on the judgment of Hon'ble Supreme Court in the case of CCE, New Delhi Vs Hari Chand Shri Gopal [2010 (260) ELT 3 (SC)] and Orient Traders Vs CTO, Tirupati [2009 (237) ELT 447 (SC)] to come to the conclusion that the appellant had failed to fulfil the conditions prescribed for abatement of duty under protest which are mandatory in nature. He, however, held that only Rs. 44,87,001/- was hit by limitation and not Rs. 1,56,12,031/-. 7. On the issue of unjust enrichment, Commissioner observed that they had not furnished a....
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....lso submitted that the appellants have themselves stated that they were not in a position to give any further documents required to substantiate their claim that they have not passed on or to prove one-one co-relation. 10. Heard both the sides and perused the records. Since the issue is common in both the appeals, we intend to dispose both the appeals together by common order. 11. The short issue for determination is whether (a) the refund is hit by time bar under Section 11B and (b) whether refund is hit by unjust enrichment. 12. There is no dispute on the merit of the case in as much as the appellants were not required to pay duty as per MRP, which was suggested by the Audit Team, however, the appellants paid the differential amount pointed out by the Department along with interest. We have perused the letter dated 16.01.2009 which has been duly acknowledged by the office of Deputy Commissioner of Central Excise on the same day. In the said letter, while they have indicated that they have to discharge excess duty on MRP value after availing abatement, they are paying the differential duty demand raised by Audit under protest vide Challan No. 2 and 3 dated 15.01.2009 and ....
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....ave to be considered as intimation of their having paid the said duty pursuant to audit objection "under protest". We find force in the reliance placed on the judgment in the case of India Cements Ltd., Vs Collector of Central Excise [1989 (41) ELT 358 (SC)] wherein Supreme Court had interalia, accepted a mere letter as a letter of protest and allowed the appeal by not accepting the grounds for invocation of limitation. We also note that in this case, while the initial demands were made under protest, afterwards they have been paying on a regular basis and claim for refund was also made under normal period, and hence not hit by time bar. We find that their reliance in the case of Girish Foods & Beverages Pvt Ltd., Vs CCE, Pune [2007 (211) ELT 388 (Tri- Mum)] also supports their contention that payment of duties were under protest. We also find that in the case of Indian Pistons Ltd., Vs Collector of Central Excise [1990 (46) ELT 3 (SC)], in para 10, the Hon'ble Supreme Court observed that Rule 33B of Central Excise Rules does not prescribed any particular form of protest. Similarly, in the case of CCE, Chennai-I Vs ITC Ltd., [2005-TIOL-59-HC-MAD-CX] the Hon'ble High Court observed ....