Custom, Excise & Service Tax Tribunal
Bharat Heavy Electricals Ltd vs Commissioner Of Central Excise, ... on 29 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/1114/2009-SM [Arising out of Order-in-Appeal No. 81/2009 dated 28/08/2009 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad] For approval and signature: HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Bharat Heavy Electricals Ltd. Heavy Electrical Equipment Plant, Ranipur, Haridwar 249 403 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Hyderabad-I Kendriya Shulk Bhavan, L.B Stadium Road, Basheerbagh, Hyderabad 500 004 Andhra Pradesh Respondent(s)
Appearance:
None For the Appellant Mr. Mohd. Yusuf, AR For the Respondent Date of Hearing: 29/05/2015 Date of Decision: 29/05/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. 21219 / 2015 Per : ARCHANA WADHWA On matter being called today neither anybody appeared nor is there any adjournment request in spite of the notice of hearing having been sent to the appellant well in advance. I also note that the matter has come up on third time earlier when the appellants were unrepresented and the mater was being adjourned in the interest of justice.
2. In view of the above, I have heard learned DR and have gone through the impugned order.
3. The appellants were receiving Welded Austenitic Stainless Steel Tubes from M/s. CST Ltd., which had claimed the exemption under Notification No. 108/95-CE for such supplies to the appellant. The said exemption availed by the supplier was denied to them by way of an adjudication order, which was appealed by them before Tribunal. The Tribunal decided the appeal in favour of M/s. CST Ltd. vide its Final Order dated 04.02.2008 holding that they are eligible for the benefit of Exemption Notification No. 108/95-CE.
4. However pending dispute before the Tribunal, M/s. CST continued to pay duty on the goods supplied to the appellant, without any protest etc. On the success of the appeal of M/s. CST Ltd. before Tribunal, the appellant filed a refund claim of Rs. 64,52,209/- (Rupees Sixty Four Lakhs Fifty Two Thousand Two Hundred and Nine only) in respect of the duty paid by them on the goods received from M/s. CST Ltd. on the basis of a disclaimer certificate in favour of the appellant.
5. The lower authorities allowed the refund of Rs. 50,26,495/- (Rupees Fifty Lakhs Twenty Six Thousand Four Hundred and Ninety Five only) and rejected the balance amount of Rs. 14,25,714/- (Rupees Fourteen Lakhs Twenty Five Thousand Seven Hundred and Fourteen only) as barred by limitation.
6. On an appeal against the above order, Commissioner (Appeals) upheld the order of the original adjudicating authority by observing as under:
4. I have carefully gone through the case records and submissions made in the Appeal Memorandum. I find that the manufacturer (M/s. CST Limited) started paying duty pending disposal of their appeal against the Order-in-Original passed by the Commissioner. However, there is no letter of protest for such payment of duty. The CESTATs order is in relation to specific Order-in-Original No. 10/2006 & 23/2006 dated 07.08.2006 and 26.12.2006 respectively both passed by the Commissioner. The CESTATs order can be relevant only in respect of the period covered within the aforesaid Order-in-Original passed by the Commissioner which have been set aside. For payment of duty pending disposal of the appeal and eligibility to the exemption under Notification No. 108/95-CE, it was necessary for M/s. CST Limited to lodge the claim of protest for payment of duty and in the absence of such explicit claim of protest on record, the time period prescribed under Section 11B with reference to the relevant date as defined in the explanation to Section 11B prevails and the jurisdictional Assistant Commissioner has rightly rejected the amount of Rs. 14,25,714/- as time barred. The submission that filing of appeal before CESTAT should be taken as letter of protest has no merits with reference to the refund filed. Therefore, I reject the appeal filed by the appellants. Hence the present appeal.
7. After hearing learned DR and after going through the impugned order, it is seen that admittedly the refund of Rs. 14.25 lakhs (Rupees Fourteen Lakhs Twenty Five Thousand approximately) stands filed by the appellant beyond the normal period of limitation. It is also factually correct that no protest was lost either by M/s. CST or by the appellant for the said period in question. The lower authorities have rightly concluded that the Tribunals order would be applicable only to the period involved in those appeals and cannot be held to be applicable for the entire period in question. Inasmuch as neither any protest was lodged nor the Tribunals order covers the period in question, the lower authorities have rightly held the refund to be barred by limitation. The appellants stand that inasmuch as the issue was before the Tribunal by way of an appeal, the duty paid during the subsequent period should be deemed to be having been paid under protest cannot be appreciated as there is a specific procedure to be followed for paying the duty under protest. The appellant having not followed that procedure, the deemed fiction cannot be adopted merely because the earlier order was the subject matter of appeal before the Tribunal. As such I find no infirmity in the views of the lower authorities. The appeal is accordingly rejected.
(Order pronounced in open court) (ARCHANA WADHWA) JUDICIAL MEMBER iss