Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Evershine Marbles & Exporters P. Ltd on 16 December, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Excise Appeal No. 597 of 2007 (SM) [Arising out of the Order-in-Appeal No. 688 (HKS) CE/JPR-II/2006 dated 11/12/2006 passed by The Commissioner (Appeals-II), Customs & Central Excise, Jaipur. ] For Approval and signature : Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? CCE, Jaipur II Appellant Versus M/s Evershine Marbles & Exporters P. Ltd. Respondent
Appearance Shri S. K. Panda, Authorized Representative (DR) for the appellant.
Shri Atul Gupta, C.S. for the respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 16/12/2008.
Order No. ________________ Dated : ,,,,,,,,,,,_____________ Per. Rakesh Kumar :-
In course of surprise visit made by the Central Excise officers to Respondents factory on 10/10/2001, shortage of marble slabs involving central excise duty was detected. The Respondent paid the amount by debit entry in the PLA on the same date. Subsequently, a show cause notice was issued to the Respondent for appropriation of the duty already deposited by the Respondent and also imposing penalty on them under Section 11AC treating the shortage of the marble slabs as clandestine removal. The Additional Commissioner vide order-in-original dated 24/09/03 confirmed the duty demand and ordered appropriation of the amount already paid by the Respondent towards the duty and beside this, penalty of equal amount was imposed under Section 11AC. The Respondent filed before the CCE (Appeals) and the Commissioner (Appeals) vide order-in-appeal dated 07/05/04 allowed the appeal following Honble Supreme Courts judgment in case of Aman Marble Industries P. Ltd. vs. CCE, Jaipur reported in 2003 (58) R.L.T. 595 (S.C.), wherein it has been held that cutting of marble blocks into slabs does not amount to manufacture. Based on the Commissioner (Appeal)s order dated 07/05/04, the Respondent filed a refund application on 23/05/06 for refund of amount of Rs. 28,125/- (Rs. 22,500/- duty + Rs. 5,625/- penalty). But the Jurisdictional Deputy Commissioner vide Order-in-Original dated 25/08/06 while sanctioning the refund of penalty of Rs. 5,625/-, rejected the refund of duty on the ground of limitation. On appeal, the Commissioner (Appeal), however, vide the impugned order-in-appeal dated 11/12/06 allowed the appeal holding that the amount deposited during investigation of the case has to be treated as amount deposited under protest and, therefore, the bar of limitation under Section 11B is not invokable. It is against this order that the Revenue has filed this appeal.
2. The learned Departmental Representative reiterating the grounds of appeal, pleaded that the amount paid by the Respondent is duty and, therefore, its refund would be governed by the provisions of Section 11B and that as per the judgment of Honble Supreme Court in the case of M/s Dena Snuff (P) Ltd. vs. CCE, Chandigarh reported in 2003 (157) E.L.T. 500 (S.C.), in the cases where the refund arises out of an order-in-appeal, the limitation for the period would be reckoned from the date on which the matter had been decided in the assessees own case. He pleaded that since the Commissioner (Appeal)s order holding that the Respondents activity does not amount to manufacture and does not attract any Central Excise Duty, was passed on 07/05/04 and the refund claim was filed on 23/05/06, the refund claim is time barred and the same has been rightly rejected by the Deputy Commissioner.
3. Shri Atul Gupta, Company Secretary, the learned Counsel for the Respondent pleaded that the amount paid was in the nature of pre-deposit and, therefore, in view of Honble Bombay High Courts judgment in case of Suvidhe Ltd. vs. Union of India reported in 1996 (82) E.L.T. 177 (Bom.), the bar of limitation under Section 11B would not be applicable. He also pointed out para 6 Chapter 9 of the Supplementary instructions issued by the CBEC, according to which in the cases of refund/returned of deposit made under Section 35F of Central Excise Act, 1944 and Section 129E of Customs Act 1962, refund applications under Section 11B (1) of Central Excise Act, 1944 or under Section 27 (1) of Customs Act 1962 need not be insisted upon and a simple letter from the person who has made such deposit, requesting for return of the amount, alongwith an attested Xerox copy of order in appeal or CEGATs order consequent to which the deposit made becomes returnable and an attested Xerox copy of the Challan in Form TR6 evidencing the payment of the amount of such deposit, addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs, as the case may be, will suffice for the purpose.
4. I have carefully considered the submissions from both the sides. The amount paid by the Respondent was towards Central Excise Duty on the certain quantity of marble slabs which was found short at the time of officers visit. Subsequently, the Commissioner (Appeal), relying upon the Honble Supreme Courts judgment in case of Aman Marbles case (Supra) decided that the Respondents activity does not amount to manufacture and does not attract any Central Excise Duty. The Commissioner (Appeal)s order was passed on 07/05/04, however, the refund application under Section 11B was filed on 23/05/06. The contention of the learned Counsel for the Respondent is that in such a case, limitation period will not apply. I do not agree with this contention. Honble Supreme Court in para 5 of the judgment in case of Dena Snuff (P) Ltd. (Supra) after considering Honble Supreme Courts judgment in case of Mafatlal vs. Union of India has held that when the duty has been paid under protest, the period of limitation would start to run from the date of the final decision in the assessees own case. In this case, even, if the payment of duty by the Respondent is treated as under protest for the reason that they had challenged the Deputy Commissioners order before Commissioner (Appeal), the dispute stands decided once the Commissioner (Appeal) decided issue in their favour vide order dated 07/05/04. In view of this, the relevant date for counting the limitation period of one year for the purpose of filing refund application under Section 11B would be the date of Commissioner (Appeal)s order i.e. 07/05/04 and since in this case, the application has been filed after expiry of the limitation period, the same would be time barred. In view of this, the impugned order is not sustainable and the same is set aside. The Revenues appeal is allowed.
(Dictated and pronounced in open court.) (Rakesh Kumar) Member (Technical) PK