Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise vs Neco Centricast on 26 February, 2004
ORDER K.D. Mankar, Member (T)
1. This is revenue's appeal against the order-in-appeal passed by the Commissioner (A), whereunder the order-in-original passed against the respondents was set aside. Vide the order-in-original the refund claim of the respondents for Rs. 1,09,268/- was rejected holding that the payment was not under protest hence the claim was time barred. The said amount was paid by the respondents vide debit in RG 23 Pt-II on 26.9.95.
2. Heard both sides.
3. It is noted that the refund arose consequent to a favourable order dated 10.2.99 obtained by the respondents from Commissioner (Appeals), The amount was claimed on 9.4.99, which is within the period of 6 months from the date of the order of the Commissioner (Appeals). The departmental authorities however held that the claim ought to have been filed within 6 months from the date of payment.
4. The logic advanced by the department is somewhat intriguing. In the event the respondents were to file such a claim, the lower authorities were bound to reject it on the grounds that there is no order from the competent authority to permit refund. The order permitting refund came into existence only on 10.2.99. Therefore, against the rejection the respondents would have been required to go through a separate chain of litigation.
5. In this connection I observe that the respondents have placed reliance on the judgement of the Cegat in the case of Commissioner of Central Excise, Nagpur v. Abhideep Chemicals Pvt. Ltd. reported in 2002 (49) RLT 984 (Cegat-Mum.) wherein it has been held that "Any duty that the manufacturer pays in that situation or either he files an appeal or either when the appeal is pending would be the duty paid under protest"
6. I further observe that the Tribunal had come to the said conclusion after a detailed analysis of the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries reported in 1996 (17) RLT 907 (S.C. LB) = 1997 (89) RLT 247. Therefore, respectfully following the ratio of the Tribunal's decision in the case of CCE, Nagpur v. Abhideep Chemicals, I hold that the Commissioner (Appeals) was light in holding that the claim could not be rejected as time barred.
7. Accordingly I reject the appeal of the revenue.
(Pronounced in Court on 26/02/2004)