TaxTMI 
TaxTMI 
2026 (8) TMI 996
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.... for consideration of the following substantial questions of law : "1. Whether the CESTAT is right in holding that the appellant company is not entitled for refund of the duty paid under protest after issue of show cause notice? 2. Whether the CESTAT is right in holding that inspite of demand being time barred, revenue need not refund the duty paid under protest for availing the right of adjudication/ appeal? 3. Whether the CESTAT could have held that a demand held time barred by this Court and Hon'ble Supreme Court can be nullified by revenue by adjusting the deposit of duty paid under protest against time barred demand?" 4. The brief facts of the case are as under : 4.1. The appellant is a Company incorporated and registered under the provisions of the Companies Act, 1956 and is carrying out the business of manufacture, sale and export of chemicals. 4.2. A show-cause notice dated 28th April, 2004 was issued upon the appellant demanding modvat/cenvat credit of Rs. 50,79,488/- in respect of the credit availed on Light Diesel Oil during the period between April, 2000 to March, 2003 by invoking the extended period of limitation, alleging willful mi....
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.... admitted on the aforesaid substantial questions of law. 4.11. The CESTAT, while rejecting the Appeal, followed the decision in case of India Cements Ltd. (Supra) as under : "04. We have considered the rival submissions. We find that the larger bench of tribunal in the case of INDIA CEMENTS LIMITED in the final order, para 22 following has been observed:- 22. With respect, I think the result of the proposition that limitation does not extinguish the right but only bars the remedy would be that the Respondent, in this case, had a right to recover the amount by recourse to any other legal course open to him but not by recourse to Central Excise Rule 10 since limitation had, as on the date of invoking the right to demand the amount by recourse to that rule, extinguished that remedial right. To quote the Kerala High Court in AIR 1966 Kerala 121- "But, in so far as the particular remedial right to which it applies is concerned, limitation undoubtedly extinguishes the right. It is, however, important to remember that limitation extinguishes only the particular remedial right which is its victim and that, since it leaves the substantive right unaffected, that....
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....nuary, 2020. 4.13. The appellant has also preferred an application for stay, in view of the adjudication of the show-cause notice dated 16th October, 2012, after the grant of the refund by the Deputy Commissioner. The appellant also filed an early hearing application before the Tribunal wherein, the appellant referred to and relied upon the decision of the Madras High Court in case of Pilmen Agents Private Limited Versus Commissioner of Customs reported in 2000 (126) ELT 79 Madras, which was not considered by the Tribunal in case of India Cements Ltd. (Supra). The appellant also relied upon the subsequent decision of the Tribunal in case of Crown Lifters Versus Commissioner of Customs reported in 2015 328 ELT 590 (Tribunal) wherein, the decision of India Cements Ltd. (Supra) was distinguished. 4.14. As the early hearing application was allowed by the Tribunal, the Appeal of the appellant was heard and dismissed by the Tribunal vide impugned order. The appellant has also preferred applications for stay as well as for amendment before this Court, along with this Appeal, however, in view of the above fact that the main Appeal is taken up for hearing, both the applications are no....
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...., however, no attachment, recovery proceeding or coercive step of any description preceded that debit, as well as, it is not pleaded anywhere in the memorandum of Appeal. 6.3. Learned advocate Mr. Param Shah submitted that the demand was confirmed by Order-in-Original dated 30th August, 2004 and before the CESTAT, the appellant accepted the demand on merits and relief was granted to the appellant only on limitation. 6.4. It was submitted that the Tax Appeal No.2016 of 2009 filed by the appellant was dismissed on 21st December, 2010 holding that once the appellant has not contested the matter on merits before the Tribunal, it is not open for the appellant to raise the same before this Court. It was submitted that the Tax Appeal No.1814 of 2009 was also dismissed upon the findings that suppression was not substantiated, a bona-fide belief was entertained, no liability existed and the extended period was unavailable. 6.5. Learned advocate Mr. Param Shah submitted that the refund application dated 7th April, 2011 describes the sum as duty, deposited under Section 35F of the Act and is made under Section 11B(5)(ec) and Section 11B(1) of the Act and the refund was sanctioned und....
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....e of Parle International Ltd. (Supra), assessee had succeeded on merits and was not liable to pay any further amount and more particularly, in paragraph No.24, it was categorically held that the amount of duty paid under Section 3 of the Act is the duty and whatever is claimed subsequently can be said to be duty only after the order passed by the Adjudicating Authority is finally confirmed and the said ratio is fully satisfied in the present case. 6.13. It was submitted that reliance placed on behalf of the appellant on the decision in case of Bishwanath & Company Versus Union of India reported in 2010 (257) ELT 30 (Cal), would not be applicable in the facts of the case as nothing is mentioned in respect of refund or retention of money, already received. 6.14. It was submitted that the decision in case of C.J. Shah and Co. and Another versus Union of India and Others reported in (2018) 359 ELT 22 arose under Chapter XIV-A, where no notice, no adjudication and no determination of liability existed for the bill of entry in question and hence, not applicable to the facts of the present case. 6.15. It was submitted that in light of the aforesaid, the appellant took a credit, w....
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....hment does not arise. - same view in Silwester Textiles V. CCE 2003 (156) ELT 216 (CEGAT) * Hyderabad Deccan Cigarettes V. CCE 2004(166) ELT 41 (CESTAT) * Plast Pack Industries v. CCE 2004(167) ELT 422 (CESTAT) * Balrampur Chini Mills V. CCE 2004 (174) ELT 221 (CESTAT) * Sunbeam Auto Ltd. V. CCE (2005) 185 ELT 297 (CESTAT SMB) * Asian Paints V. CCE 2006 (199) ELT 873 (CESTAT) * Dharwad Coop Milk Producers Societies V. CCE (2008) 12 STT 168 (CESTAT). 7. Further, I find that Board has clarified at Para 5.5 of Chapter 9 (Refund) of Central Excise Manual as under; "In all types of cases mentioned above, processing of refund application should simultaneously start separately from the point of view of unjust enrichment provisions and accordingly the assessee/ claimant should be asked to submit the evidence to establish his claim that incidence of duties hose refund is claimed has been borne by him and that the same has not seen passed on to the buyers). Where the claimant is unable to furnish this evidence or otherwise is not entitled to refund, passing of appropriate orders on refund requested could be considered by competent authority irrespective of the outcome of SL....
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....9 (Refund) says that ; "In all types of cases mentioned above, processing of refund application should simultaneously start separately from the point of view of unjust enrichment provisions and accordingly the assessee / claimant should be asked to submit the evidence to establish his claim that incidence of duties whose refund is claimed has been borne by him and that the same has not been. passed on to the buyers). Where the claimant is unable to furnish this evidence or otherwise is not entitled to refund, passing of appropriate orders on refund requested could be considered by competent authority irrespective of the outcome of SLP/ Civil Appeals / Stay Petitions pending before Supreme Court or other appeals etc. before lower appellate authorities. In all other cases, not involving any dispute, refund applications should be processed on 'merits speedily and a decision taken within a period of three months from the date of application to avoid any interest liability - where refund is held admissible." In view of the above facts, discussion & judicial pronouncements, I pass the order as under: ORDER: I sanction the refund to Rs. 50,....