Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Central Excise And ... vs Konark Paper & Industries Ltd. on 28 August, 2001
Equivalent citations: 2002(79)ECC549
JUDGMENT
Archana Wadhwa
1. After rejecting the stay petition filed by the Revenue I take up the appeal as the issue lies in a narrow campus. Accordingly I have heard Shri A.K.Chattopadhaya, learned JDR fro the Revenue. Nobody is present on behalf to the respondent(s).
2. As per the facts on record the Assistant Commissioner, vide his order daed 31.5.90 confirmed an amount of Rs.10,328/- leviable as cess on the paper manufactured by the respondent. Thereafter the appellant preferred an appeal against the said order of the Assistant Commissioner. However during pendency of the appeal before the Commissioner (Appeals) the respondents deposit the amount of Rs.10,328/- (rupees ten thousand three hundred twenty eight only) as confirmed by the Assistance commissioner, vide T.R.-6 dated 19.11.90. Their appeal before the Commissioner (Appeals) succeeded and the order of the Assistant Commissioner was set aside. Thereafter the respondents approached the Revenue for the refund of the said amount of Rs.10.328/- so deposited by them as a result of confirmation of demand against them by the Assistant Commissioner.
3. On receipt of the refund application the respondent was served with a Show-cause Notice proposing rejection on the ground of unjust enrichment. Assistant Commissioner, Balasore, while adjudicating the Show-cause Notice, observed that the said amount was deposited by the respondents after Order-in-Original dated 31.5.90 was passed by the Assistant Commissioner and was also deposited as a lump-sum amount vide TR-6. As such the provisions of unjust enrichment are not attracted. Accordingly the allowed the refund claim.
4. The Revenue being aggrieved with the said order of the Assistant Commissioner preferred an appeal before the Commissioner (Appeals), who rejected the same. Being not satisfied, the Revenue has preferred the present appeal.
5. In their ground of appeal they have referred to the period of limitation under provisions of Section 11B and have submitted that the refund was barred by limitation inasmuch as the duty was not paid under protest. However it is seen that duty was deposited by the respondents as a result of the order passed by the Assistant Commissioner. In the Case of Mafatlal Industries, the Hon,ble Supreme Court has held that where the duty was paid under the order of the Court it would not be necessary to lodge protest. The Revenue's contention is that the Office of the Commissioner (Appeals) is not the Court. The abvoe objection of the Revenue has been the subject matter of number of appeals before Tribunal wherein a view was taken that the Appellate Authority exercising jurisdiction under the Central Excise Law can also be considered as court. The deposit made by the assessee, thus would be covered by the decision of the Hon'ble Supreme court in the case mafatlal industries. In view of this I do not find any merit in the Revenue's appeal and reject the same.
(Dictated & pronounced in Court)