TaxTMI 
TaxTMI 
2026 (9) TMI 180
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....r the period 20.1.1978 to 7.1.1991 on the ground that no letter of protest under Rule 233B of the Central Excise Rules, 1944 [1944 Rules] was given by the appellant and hence the limitation for filing a refund under section 11B would apply and the refund application was filed after the time limit. 2. The appellant had purchased angles, channels, flats, MS Road, Joists, etc. from Steel Authority of India Ltd (SAIL), cut them to desired sizes, drilled holes in them and sent them to the sites where they were used to erect electric poles. These activities of cutting and making holes was considered by the department as manufacture and hence central excise duty was, according to the department, payable. According to the appellant, these activities did not amount to manufacture and hence no duty was payable. The appellant had paid duty and then filed two refund claims - the first on 16.6.1995 covering the period 1.1.1978 to 28.2.1995 and the second dated 21.4.1995 covering the period 1.3.1995 to 31.1.1997. 3. These applications went through several rounds of litigation at various levels. It is now settled by the Supreme Court in the following judgments that refund is in the nature o....
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....d restored the matter to the Commissioner (Appeals) to decide the appeal on merits. 7. Accordingly, the impugned order was passed by the Commissioner (Appeals) deciding the appeal against the order of the Assistant Commissioner dated 28.12.2017. 8. Aggrieved, the appellant filed this appeal. The only point to be decided is if the refund was correctly rejected for the period 20.1.1978 to 7.1.1991 on the ground that the refund application was filed after the time limit and there was no letter of protest under Rule 233B of the Central Excise Rules, 1944 for the period. For the previous period 1.3.1975 to 19.1.1978, the appellant had filed letters of protest and the Assistant Commissioner sanctioned the refund. Submissions of the appellant 9. Learned counsel for the appellant reiterating the grounds of appeal, submitted as follows: (i) The Commissioner (Appeals) has erred in not accepting the contention of the appellant that refund has already been sanctioned for the prior period (1.3.1975 to 19.1.1978) and also for the later period (1.3.1995 to 31.1.1997). (ii) The Commissioner (Appeals) upheld rejection of refund on the sole ground that the appellant was....
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....efund applications. While it is contrary to the law laid down in Priya Blue, Flock India and ITC Ltd., insofar as this case is concerned, the issue has attained finality on merits with this Tribunal's order dated 9.1.2017 in favour of the appellant. Neither side appealed against this order; on the other hand, the Assistant Commissioner has recorded that the department accepted the order. Thus, there is no dispute on merits that the appellant was not required to pay central excise duty which he had paid. 12. The contention of the appellant that since no central excise duty was payable, the limitation under section 11B would not apply is without any force. If duty was payable, the question of refunding it would not arise. Refund of duty of excise would only mean refund of an amount which was paid as central excise duty but which was not payable. 13. If an amount is paid as duty which is otherwise not payable, the amount has to be refunded under section 11B. On the other hand, an amount which was payable but which was not paid or which was short paid can be recovered under section 11A. In the case of refunds, the tax payer would have paid more to the people of India (by paying i....
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....it the duty under protest, he may file an appeal or revision within the period specified for filing such appeal or revision, as the case may be. (7) On service of the decision on the representation referred to in sub-rule (5) or of the appeal or revision referred to in sub-rule (6) the assessee shall have no right to deposit the duty under protest: Provided that an assessee shall be allowed to deposit the duty under protest during the period available to him for filing an appeal or revision, as the case may be, and during the pendency of such appeal or revision, as the case may be. (8) If any of the provisions of this rule has not been observed, it shall be deemed that the assessee has paid the duty without protest. 16. For the periods both before and after the relevant period refund was allowed without considering the limitation for the reason that the Protest letters were available. The appellant was not able to produce Protest letters or RT-12s or challans with endorsement that the duty was paid under protest and it is for this reason that the lower authorities have rejected the refund on the ground of limitation. 17. The submission of the appell....