TaxTMI 
TaxTMI 
2026 (2) TMI 897
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.... It is admitted fact that the appellant has filed refund claim on 24.03.2015 for the total duty amounting to Rs. 1,53,36,799/- involved for the month of Jan 2014 to March 2014. On examination of the refund claim the adjudicating authority has observed that refund portiou for the month of Jan 2014 was Rs. 56,85,511/- & for the month of Feb 2014 was Ra 58,27,036/ The appellant has filed ER-1 returns for the month of Jan 2014 on 08.02.2014 and for the month of Feb 2014 on 08.03.2014, therefore, last date of filing of refund claim pertaining the month of Jan 2014 & Feb 2014 is 07.02.2015 & 07.03.2015 respectively, Since the appellant has filed refund claim of 24.03.2015, therefore, refund claim for the month of Jan 2014 & Feb 2014 are barred by limitation period of one year as prescribed under Section 11B of the Central Excise Act, 1944. i find no infirmity in the findings of the adjudicating authority. 4.4 As for as refund for the month of March 2014 is concerned the appellant has filed ER. 1 return for the month of March 2014 on 09.04.2014 by paying duty on 05.04.2014and refund claim was filed on 24.03.2015, therefore, refund claim for the month of March 2014 amounting to Rs....
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....Contract are spread over a long period-sometimes one/two years or even more. (b) Accordingly, as is evident from Assessment Finalisation Order Dated: 16.01.2015, that it covers all the month's clearances -billed vide Provisional Invoices listed in ER-1 of that particular month. (c) As per CBEC Manual Chapter-3 para 2.67(Part IV) finalisation of Provisional Assessment means finalisation of an issue/ground and thereafter each ER-1 (Ref para-15, p 103) ACCE's OIO No: 27 DT: 17.12.2008) Thus the assessment of provisionally issued C.Excise Invoices during Jan 2014 & Feb 2017 were finalised only vide Finalisation Order DT: 16.01.2015, irrespective of the fact as to whether the valuation varied or not and whether the monthly Excise duty paid provisionally on 08.02.2014 & 08.03.2014 varied or not. In the event duty was found to be short paid, the relevant date for issuance of SCN u/s 11A would have been the date of finalisation of assessment, and limitation period for issuance of Show Cause Notice for recovery of the short paid duty would not be reckonable from the date of payment of duty but from the date of finalisation of assessment only....
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....aim." 3.3 Learned Authorized Representative for the Revenue reiterates the findings recorded in the Appeal and during the course of argument. 4.1 We have considered the impugned order alongwith the submissions made in the appeal. Initially we observe that by Order dated 17.12.2018 in first round of litigation refund claim of the Appellant was rejected by the Original Authority observing as follows:- "15. In this case the party had filed a refund claim worth Rs.1,53,36,799/- for refund of the excise duty paid by them on the goods cleared under the excise invoices issued between the period 30.01.2014 to 29.03.2014, on the grounds that the product cleared by them on these invoices were exempted from payment of duty vide S.No.336 of Notification No. 12/2012-CE, dated 17.03.2012 and that their buyer had not paid/reimbursed excise duty to them. The department had, however, issued a show cause notice on 23.09.2015 to the party whereby the said claim was sought to be rejected in the light of finding of Hon'ble Supreme Court of India in the case of M/s Priya Blue Industries Ltd., Vs. Commissioner of Customs(Preventive) in Civil Appeal No.9045 of 2003. The SCN furthe....
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....ed 16.01.2015 are not inclusive of the price variation in respect of the invoices for which refund is claimed". 18. I also observe that the party vide their letter Ref BHE/JHS/Fin/CEx./15-16, dated 12.08.2015 has further stated that they have already communicated that upto 16.01.2015 (i.e. the date of final assessment) no supplementary invoices have been raised with respect to original supply invoices against which refund claim for Rs.1,53,36,799/- have been re-filed on 06.07.2015. This clearly indicates that there was no price variation in the assessable value of goods cleared by the party and sold to their buyer under the original excise invoices for which refund has been claimed. 19. Section-11B(5)(B)(eb) of CE Act dealing with the relevant date of filing of refund clearly specifies that in "in case where duty of excise is paid provisionally under this Act or the rules made therunder, the date of adjustment of duty after the final assessment thereof". It makes it amply clear that with regard to payment of excise duty on a provisional basis, the relevant date of adjustment of duty would be after the final assessment thereof. In this case the final assessment ord....
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....fund claim is not maintainable when the assessee did not challenge the Assessment Order which became final. I find that in this case the assessment was finalized by the proper officer vide order dt.16.01.2015 without any objection from the party. The case laws cited by the party do not come to their rescue as the facts and circumstances of those cases were not similar to instant case." 4.2 This order was set aside by the Commissioner (Appeals) vide order dated 26.03.2019 observing as under:- "4.1 I have carefully gone through the facts of the case, the averments made at the time of the personal hearing and all other material/ documents available on record. It is observed that: (i) The refund claim of the appellant was rejected by the Adjudicating Authoirty on the grounds that (i) the refund claim was time barred, considering the relevant date in this case as the date of payment of duty (clause (B) (f) of Explanation in Section 11B of the Act and the date of filing the refund claim as 06.07.2015 and (ii) since the appellant did not challenge the Final Assessment Order dated 16.01.2015, they could not have, therefore, filed the refund claim, in terms of decisions....
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....s not the issue involved therein. Accordingly, in the Final Assessment Order dated 16.01.2015, the issue of rate of duty could not have been discussed and as such, this Order dealt with the issue of valuation only. 4.2.2 The decision in the case of Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) 2004 (172) ELT. 145 (S.C.) was based on the decision in the case of CCE Kanpur vs. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (S.C.), wherein (i) the adjudicating authority had classified the goods manufactured as falling under Tariff Item No. 22B and the refund claim was filed on the basis that the goods were classifiable under T.1. 22A, (ii) thus, the issue before the Hon'ble Supreme Court was having accepted the classification under Tariff Item No. 22B as held in the adjudication order, was it open to the assessce to claim refund by contending that the goods were classifiable under Tariff Item 22A and (ii) in this context, the Hon'ble Supreme Court held that without filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority by filing a refund claim 4.2.3 I also find that the Hon'bl....
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..../2012-CE dated 17.03.2012. 4.2.6 I also find that in the following judicial pronouncements, the decisions of the Hon'ble Supreme Court in the cases of Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.) & CCE Kanpur vs. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (S.C.), on similar basis, have been found inapplicable: (i) Primo Pick N Pack Ltd. vs. Union of India 2001 (129) ELT 296 (M.P.) (ii) Indian Dyestuff Industries Ltd. vs. Union of India 2003 (161) ELT 12 (Bom.) (iii) Navinon Ltd. vs. U.O.I. 2004 (163) ELT A56 (S.C.) (iv) Aman Medical Products Ltd. vs. CC, Delhi 2010 (250) ELT 30 (Del.) (v) Micromax Informatics Ltd. vs. Union of India 2016 (335) ELT 446 (Del.) (vi) Anupam Products Ltd. vs. CC, ICD, TKD, New Delhi 2012 (282) ELT 451 (Tri-Del.) (vii) Ahswin Vanaspati Indus. Pvt. Ltd. vs. CC, Kandla 2012 (280) ELT 158 (tri-Ahmd.) 4.3 Now I take up the other issue regarding the relevant date. Since it has already been held that the rate of duty (i.e., admissibility of exemption notification) was not an issue involved in the provisional asses....
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.... 4.5 Thus, I find that in this case, date of filing of refund claim is 24.03.2015, the relevant date (for the purposes of Section 11B(1) of the Act) is the date of payment of duty (clause (B)(f) of the Explanation in Section 11B of the Act) and the decisions of the Hon'ble Supreme Court in the cases of Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.) & CCE Kanpur vs. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (S.C.), are inapplicable to the facts of this case. 4.6 As regards to the submissions of the appellant that their earlier refund claim pertaining to the period April, 2013 to September, 2013 on the same contract, was sanctioned vide Order-in-Original No. 123-C.Ex/Refund/AC/JHS/2014 dated 13.10.2014; and that the Department in their case, had earlier taken stand that filing of refund claim when the assessment were yet to be finalized, was premature, are unjustified, as a wrong decision or order cannot entitle the appellant to claim the same benefit as held by the Hon'ble Supreme Court in the case of Fuljit Kaur v. State of Punjab 2010 (262) E.L.T. 40 (S.C.). This position has been lucidly explained by the Hon'....
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.... by 05.02.2014/ 06.02.2014 (electronically), the duty for the clearances effected during the month of February, 2014 was required to be paid by 05.03.2014/ 06.03.2014 (electronically) and the duty for the month of March, 2014 was required to be paid by 31.03.2014. Thus, I find that this submission of the appellant requires verification at the end of the Adjudicating Authority. 4.8 Since this submission of the appellant that they had paid duty on 05.04.2014 requires verification by the appellant and also the Adjudicating Authority has not discussed the aspect of unjust enrichment in the impugned Order, I, therefore, direct the Adjudicating Authority to process & decide the refund claim of the appellant, in the light of discussions made & findings arrived at, in Paras 4.1 to 4.7 above, after verifying this submission of the appellant regarding payment of duty and after discussing/ verifying the aspect of unjust enrichment. I order accordingly." 4.3 Neither the Appellant nor the Revenue filed any appeal before the CESTAT or any other Authority challenging any of the findings recorded in the order of the Commissioner (Appeals). Accordingly, the findings recorded both on the....
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....such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of reassessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of selfassessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not ....
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....self assessment made at the time of clearance of the goods. 4.7 However, as we have observed no appeal have been filed by the Revenue challenging this order of the Commissioner (Appeals) in view of any challenge we are of the view that this ground cannot be taken up in this proceeding now. 4.8 Similarly we find that issue of limitation have also been decided by the Commissioner (Appeals) and he have given a finding with regards to the relevant date after consideration of the fact and law in the present case in Para 4.5. There has been no challenge to these findings by the Appellant in any proceedings before this Tribunal or any other Authority. Accordingly, raising any ground contrary to the above finding would be against the principle of judicial and legal proprietary. Such ground would barred by principle of res judicata. In the remand proceedings Order-In-Original specifically refers to this Order-In-Appeal dated 26.03.2019 and examines the refund claim on the basis of the directions and findings given in this Order-In-Appeal. 4.9 The relevant findings recorded in the Order-In-Original are reproduced below:- "Having regard to the circumstances....
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....04.2014 08.04.2015 24.03.2015 within time So, during scrutiny the refund pertaining to the clearances made against invoices issued in the month of Mar-14 is found to the tune of Rs 38,24,252/-. The claimant had paid central excise duty on the 5th April 2014 and they had filed the refund claim on 24.03.2015, which is within one year of the date of payment of C. Excise duty. So this portion of refund amount may be sanctioned to the claimant." 4.10 We have reproduced in Para 1 the findings recorded in the impugned order. 4.11 We find in absence of any challenge by the appellant to the earlier order of the Commissioner (Appeals) the findings recorded have attained finality. Commissioner (Appeals) have specifically stated in the order as the manner for determining the relevant date for computation of period of limitation. Order-InOriginal goes by the same and have partly rejected the refund claim paid by the Appellant. The Commissioner (Appeals) also recorded the same in Para 4.2 to 4.4 of the impugned order. Commissioner (Appeals) is also bound by the findings recorded in his own order dated 26.03.2019. 4.12 ....
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....inal authority, i.e., the Assistant Collector, Central Excise. It would be treated that the respondent had accepted the order passed by the Commissioner (Appeals) in so far as it has held that bought out items brought directly to site was liable to excise duty. That order having become final, as held by the Apex Court in the case of Food Specialities Ltd. (supra), it was not open for the respondent to reopen it in the appeal preferred before the Tribunal. Further, a specific plea regarding the finality of the order passed by the Commissioner (Appeals) was taken by the appellant before the Tribunal and, therefore, the principle laid down by the Apex Court in the case of Hindustan Lever Ltd. (supra) would not be applicable. 18. In the case of Jasraj Inder Singh (supra) the Apex Court has held that the Supreme Court is not bound by what the High Court might have held in its remand order. It has held that a finding in an earlier order cannot bind a higher Court when it hears the matter in appeal. We are of the considered opinion that the same principle cannot be extended to a Tribunal which is not a Court. As held by the Apex Court in the case of Flock (India....
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....n the case of Bharat Sanchar Nigam Limited [2006 (2) STR 161 (SC)] Hon'ble Supreme Court held as follows: "20. A decision can be set aside in the same lis on a prayer for review or an application for recall or Under Art. 32 in the peculiar circumstances mentioned in Hurra v. Hurra. As we have said overruling of a decision takes place in a subsequent lis where the precedential value of the decision is called in question. No one can dispute that in our judicial system it is open to a court of superior jurisdiction or strength before which a decision of a Bench of lower strength is cited as an authority, to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. ....." 4.17 In case of M. Nagabhusana [2011 (271) ELT 481 (SC)] Hon'ble Supreme Court observed: "12. We find that disregarding the aforesaid clear finding of this Court, the appellant, on identical issues, further filed a new writ petition out of which the present appeal arises. That writ petition, as noted above, was rejected both by the learned Single Ju....
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....aying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments :- "The plaintiff should be non--suited if the defendant avers : 'in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case". There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane's Edition, page 15) to the same effect. Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the....
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....ata is to prevent an abuse of the process of Court. 24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh v. Mallard - (1947) 2 All ER 255 (CA) : "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subjectmatter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them." 25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. v. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. 26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle : "..............an adjudication is conclusive and final not only a....
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....icy and the interests of justice may be very material." 30. In the premises aforesaid, it is clear that the attempt by the appellant to re-agitate the same issues which were considered by this Court and were rejected expressly in the previous judgment in All India Manufacturers Organisation (supra), is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of Res Judicata or Constructive Res Judicata and principles analogous thereto." 4.18 In case of M J Exporters Pvt Ltd. [2015 (325) ELT 216 (SC)] following was observed: "10. No doubt, if the question of law raised in the final Court is a pure question of law and there is no controversy on facts, which are already on record, and on the basis of those facts, the question of law can be determined in the interest of justice, such a question of law could be allowed to be raised even if it was not raised in the Court. However, in the present case, having regard to the manner in which the case proceeded in the Courts below, we feel that the appellant cannot be allowed to raise this question. 11. Mr. K. Radhakrishnan, learned senior counsel appeari....