Customs, Excise and Gold Tribunal - Calcutta
Cce And Customs vs Nilachal Concrete Products (P) Ltd. on 18 March, 2005
Equivalent citations: 2005(191)ELT241(TRI-KOLKATA)
ORDER M.P. Bohra, Member (J)
1. Heard Shri K. Sanyal, Ld. JDR for the Revenue-Appellant and Shri C.R.Das, ld. Advocate for the respondents.
2. Shri Sanyal submits that the Commissioner (Appeals) has wrongly allowed the refund claim by the respondents. The order of the Commissioner (Appeals) is not proper and correct. A person paying duty under protest has to follow the procedure prescribed by the Rules. In the present case, the procedure has not been followed. Therefore, he submits that the impugned order is contrary to law and the appeal may be allowed.
3. Ld. Advocate, Shri Das submits that the issue is already settled that the deposit made after issue of show-cause notice amounts the payment under protest and not his by the clause of limitation. He also relies on the following decisions :
(a) CCE, Chennai III v. Rane Engine Valves Ltd. reported in 2003 57 RLT 191 (CESTAT-Che)
(b) Classic Computer v. CCE, Gunture And Vice Versa reported in 2004 64 RLT 49 (CESTAT-Ban)
(c) Asha Handicrafts v. CCE, Mumbai IV reported in 2004 63 RLT 451 (CESTAT-Mum);
(d) CCE, Mumbai II v. Kohinoor Industries reported in 2004 63 RLT 453 (CESTAT-Mum)
(e) Maihar Cement v. CCE, Bhopal reported in 2004 178 ELT 991 (Tri-Del.) He, therefore, submits that the appeal may be dismissed.
4. I have perused the records and the citations submitted by the respondents. In the case of Maihar Cement v. CCE, Bhopal referred to above, it has been held that the duty paid by the appellants consequent to issue of show-cause notice which was subsequently decided in their favour amounts to deposit or deemed to be deposited made under protest because they were contesting the demand. The claim of refund of that amount not his by time bar as limitation not applicable to duty paid under protest.
5. In the present case also, the respondents reversed the Modvat credit on 27.11.95 after receipt of show - cause notice dated 5.10.94 and 20.10.94. In view of the aforesaid decision, the bar of limitation is not applicable in the present case. Ld. Commissioner (Appeals) has rightly came to the conclusion that Section 11B is not applicable to the present case. I do not find any infirmity in the order of the Commissioner (Appeals). The appeal deserves to be dismissed. Consequently, I dismiss the appeal filed by the Revenue.