Customs, Excise and Gold Tribunal - Bangalore
Cce vs Sudhir Papers (P) Ltd. on 23 April, 2002
Equivalent citations: 2002(104)ECR604(TRI.-BANGALORE), 2002(148)ELT275(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. This is an appeal filed by Revenue against the Order-in-Appeal No. 844/99-CE dated 13.8.1999 passed by the Commissioner of Customs & C. Excise (Appeals), Bangalore.
2. The issue relates to refund claim. The Assistant Commissioner has rejected the refund claim made by the party towards duty paid as Cess on the ground that the claim is barred in terms of Section 1lB of Central Excise and Salt Act, 1944. The Commissioner (Appeals) in the impugned order while deciding the issue in favour of the party observed that it is seen that the course of action for refund arose in this case only when the credit wrongly taken was reversed on May 1996. Only at that point of time double payment of Cess and a ground for refund in respect thereof arose. Accordingly the refund claim was well in time.
3. The Respondents, M/s. Sudhir Papers (P) Ltd. had filed refund claim of Cess paid in RG 23A pt II after expiry of six months from the relevant date as stipulated in the provisions of Section 11B of Central Excise Act, 1944. In the instant case, the assessee has paid the amount payable as Cess for the years 1994-95 and 1995-96 (From 1995 to Jan 1996) in the RG 23A pt II account initially. Subsequently the amount of Rs. 85,503/- paid in RG 23A part II was once again debited from their PLA account and refund of the original Cess paid was claimed vide their application dated 1.7.1997 which is after a lapse of six months from the date of payment of duty.
4. Shri Narasimha Murthy, JDR for Revenue submitted that refund claim had been made beyond limitation provided under Section 11B of the Central Excise Act, 1944 and hence refund claim is hit by limitation. He justified the action of the Assistant Commissioner in rejecting the claim and said that the Revenue authorities acting under the Act were bound by the provisions of the statute.
5. Shri Ramasubramanian, Counsel appearing for the Respondents submitted that the payment of Cess which was initially made through modvat account was considered not correct and hence the same was got recovered subsequently through PLA debits. He said that what the appellants claim was re-credit of the amount debited through modvat account. He said that there has been double payment of Cess and time limit cannot be invoked for second debit. It was also submitted by him that the Commissioner (Appeals) while allowing the appeal has given a categorical finding that the 'credit wrongly taken was reversed on May 96', remained undisturbed since that findings had not been challenged by Revenue. He submitted that Section 11B is not applicable to the credit wrongly taken and in this context he referred to the decision of the Supreme Court in the case of Collector of Central Excise, Jaipur v. Raghuvar (India) Ltd. 2001 (118) ELT 311 wherein it was held that provisions of Section 11A of the Central Excise Act, 1944 has no application to any action taken under Rule 57-I, prior to its amendment on 6.10.1998, and Rule 57-1 is not in any manner subject to Section 11A. He said that similarly Section 1 IB of the Central Excise Act is not applicable with reference to credit wrongly taken. He also relied upon the decision of the Tribunal in the case of Commissioner of C. Excise, Chandigarh v. JCT Ltd. and Commissioner C Excise, Calcutta-II v. Jayshre Insulator in support of his contention.
6. I have carefully considered the submissions made by both sides and perusal of records. The assessee has paid the amount payable as Cess in RG 23A Pt II account initially. When pointed out by the Department, an amount of Rs. 85,503 paid in RG 23A Pt II was once again debited from their PLA account and refund of the original Cess was claimed vide application dated 1.7.1997 which is after a lapse of six months from the date of payment of duty on pointing out the mistake, if it was not debited in PLA account as directed, the course open to the Department to issue notice for raising demand and same would have been barred by time as the demand notice was hit by limitation under Section 11A. It was the contention of the party that it was a case of debiting the amount which wrongly credited and not payment of Cess as duty. If it was so they could have asked permission from the authority to debit the wrong credit. Instead of that the party has chosen to file a refund claim. I am not convinced with the arguments advanced on behalf of the party that provisions of Section 11B is not applicable to this case. I find that Section 11B is the only Section which deals with the refund claim unlike recovery of demand and limitation is provided under various provisions including Section 11A of the Act. No case law was brought to may notice to take a view that Section 11B is not applicable to this case. Further more if contention of the party is accepted that what they have paid at the initial stage was not duty but only a deposit, then only course is open to recover that money/deposit through Civil Court subject to limitation under General Limitation Act. Since the Section 11B is the only Section concerns with refund claim and party has filed a refund claim, the Assistant Commissioner was right in rejecting the claim as barred by time. I am in agreement with the arguments advanced by the Departmental Representative that Revenue authorities acting under the Act were bound by the provisions of the statute. Precisely this was the view of the Supreme Court in the case of Collector of C. Excise, Chandigarh v. Doaba Co-operative Sugar Mills and Supreme Court in the case of Miles India Ltd. v. Assistant Collector of Customs reported in 1987 (30) ELT 641 (SC) : 1985 ECR 289 (SC) : ECR C 750 SC : ECR C Cus 1094 SC. Since the Tribunal being a creature of the statute, the Tribunal cannot go beyond provisions of the statute and more so relief if any cannot be granted on principle of the equity. In the result the appeal filed by the Revenue is allowed.
(Pronounced in the court on 23.4.2002)