Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise vs Rane Brake Linings Ltd. on 15 September, 2003
Equivalent citations: 2003(158)ELT840(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with the order passed by the Commissioner (Appeals), Chennai, in Order-in-Appeal No. 42/03 (M-II), dated 26-3-03, by which the Commissioner (Appeals) has held that the payment made by the assessee before filing the appeal to the Commissioner (Appeals) on the conclusion of the proceedings of the original authority is covered by the judgment rendered by the Hon'ble Supreme Court, in Para 83 of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247, wherein it has been held that such deposits made before the Commissioner (Appeals) at the time of filing the appeal and the same is to be treated as made under protest and refund of such amount is not hit by time-bar. Such amount should be refunded. The findings recorded by the Commissioner (Appeals) in Paras 4 to 5 is extracted herein below :
"4. I have gone through the facts of the case, the written submissions made by the appellant, and the case laws referred during the personal hearing. The only ground taken by the lower authority is that the appellant had not paid duty "Under Protest" and that the assessment was not provisional. He relied upon the Judgment of Supreme Court in the case of Mafatlal Industries Ltd., reported in 1997 (89) E.L.T. 247 para 86.
The interpretation of the Assistant Commissioner on the judgment of the Hon'ble Supreme Court in the above case taw is not correct as the same had been interpreted by the Honourable Tribunal in the case of Commissioner of Central Excise, Nagpur, v. Abhideep Chemicals Ltd. reported in 2002 (143) E.L.T. 70 wherein the Honourable Tribunal interpreted the observation of Supreme Court as follows :-
"In my view, therefore, the court has taken into account three specific circumstances in which payment of duty is held to be made under protest. The first is referred to in Paragraph 83 where the assessee pays the duty but protests the payment of duty by filing the appeal. The relevant provision of the law required that before the appellate authorities in the stature of either the Commissioner (Appeals) or the Tribunal can hear the appeal, deposit of duty has to be made. Therefore, every person intending to appeal any liability to pay duty either depositing the duty in question or seek its waiver. If any waiver is granted, request of refund will not arise. 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 the protest being by way of appeal, revision, etc."
From the above it is very clear that from the facts of the present case has held by the Honourable Tribunal Paragraph 83 of the Apex Court judgment would be relevant. The Tribunal at Para 8 in the above judgment held as follows :-
"The Case of respondent is covered by Paragraph 83. It had paid the duty before filing appeal to the Commissioner (Appeals) and the duty was paid under protest as held by the Supreme Court.....".
Therefore, the Assistant Commissioner's only ground is totally unsustainable.
The issue is no longer res Integra and is covered by innumerable decisions of various higher judicial forums as enumerated hereunder :-
Commissioner of C.Ex., Delhi-11 v. Bharat Foam Udyog (P) Ltd. - 2002 (142) E.L.T. 546 (P & H) "Refund of pre-deposit after appeal allowed with consequential relief - Reference to High Court - Pre-deposit made by assessee in accordance with directions of Tribunal - Appeal having been allowed by Tribunalwith 'consequential relief' assessee became entitled to refund of the amount deposited - Revenue having not got any stay order, refund required to be made - Order of Tribunal giving directions to assessee to take credit of amount in his PLA proper - No question of law arises for reference - Section 35H(1) of Central Excise Act, 1944."
Konark Cylinders v. CCE, BBSR - [2002 (144) E.L.T. 454 (T)] 2002 (50) RLT 585(CEGAT-Kol.) Implementation - CEGAT's order - Rule 41 of CEGAT (Procedure) Rules, 1982 - Pre-deposit - Refund - Limitation - Unjust enrichment -Sections 35F and 11B of Central Excise Act, 1944 - CEGAT held the demand as time-barred and allowed applicant's appeal - Applicant applied for refund of pre-deposit made under Section 35F - Refund claim rejected by Dy. Commissioner on ground of limitation and unjust enrichment with observations showing utterdisregard to judicial discipline - CEGAT's order has not been challenged by the Deptt. - Limitation and unjust enrichment bar not applicable to refund of pre-deposit - Order rejecting refund is set aside as passed without jurisdiction - Dy. Commissioner to implement CEGAT's order and report compliance.
C.C.E. & C, Bhubaneswar-I v. Konark Paper & Indus. Ltd. - 2002 (49) RLT 361 (CEGAT-Kol.) Limitation - Refund - Section 11B of Central Excise Act, 1944 - Protest - Amount as confirmed by Asstt. Commissioner was paid during pendency of appeal before Commissioner (Appeals) - On appeal being allowed, the appellants claimed refund of the said amount -claim not time-barred as payment is to be treated as made under protest - Appeal rejected.
Fluidomat Ltd. v. Commissioner of Central Excise, Indore - 2002 (139) E.L.T. 82 (Tri. - Del.) Stay/Dispensation of pre-deposit - Pre-deposit is a mere deposit of money and not payment of duty, for purpose of refund claim, to which limitation provisions of Section 11B of Central Excise Act, 1944 and provisions of erstwhile Rule 233B of Central Excise Rules, 1944 do not apply - Appeal allowed.
CCE, Chennai-III v. Consul Consolidated P. Ltd. - [2002 (141) E.L.T. 792 (T)] 2002 (49) RLT 724 (CEGAT - Chennai) Refund - Pre-deposit - Section 11B of Central Excise Act, 1944 - Protest - Rule 233B of Central Excise Rules, 1944 - amount deposited under Section 35F is not payment of duly - It is deemed to have been paid under protest - Section 11B and Rule 233B not applicable to refund of pre-deposit - Appeal rejected.
CCE, Nagpur v. Abhidep Chemicals Pvt. Ltd. - [2002 (143) E.L.T. 70 (T)] 2002 (49) RLT 984 (CEGAT - Mum.) Limitation - Refund - Section 11B of Central Excise Act, 1944 - Protest - Rule 233B of C.Ex. Rules 1944 - Duty paid on confirmation of demand and thereafter appeal filed against confirmation order -Payment to be treated as made under protest, though Rule 233B procedure was not followed - Refund claim not time-barred -Appeal dismissed.
Jayanta Glass Indus. Pvt. Ltd. v. CCE, Calcutta-111 - 2002 (50) RLT 98 (CEGAT - Kol.) Refund - Limitation - Unjust enrichment - Section 11B of Central Excise Act, 1944 - Amount deposited during investigation of a case is deposit and not payment of duty - Section 11B is not applicable to refund of such deposit.
Limitation - Refund - Section 11B of Central Excise Act, 1944 -Amount deposited during investigation of case - Deemed to have been paid under protest - Refund claim of such amount is not time-barred.
Unjust enrichment - Refund - Section 11B of Central Excise Act, 1944 - Amount deposited during investigation of a case - Refund of such amount is not hit by bar of unjust enrichment.
I.T.C. Ltd. v. CCE, Patna - [2003 (155) E.L.T. 115 (T)] 2002 (51) RLT 356 (CEGAT - Kol.) Unjust enrichment - Refund - Section 11B of Central Excise Act, 1944 - Bar not applicable to refund of amount deposited during pendency of appeal before CEGAT and relatable to set-off of duty in terms of Notification No. 201/79-C.E. - Appeal allowed.
Shree Ram Food Industries v. Union Bank of India - 2003 (152) E.L.T. 285 (Guj.) Refund - Substantive right of refund having arisen as a result of Commissioner's order, procedure laid down under Rule 233B of erstwhile Central Excise Rules, 1944 not capable of being followed -Non-observance of Rule 233B ibid not disentitles the petitioner from recovering amount paid in excess of duty leviable - Amount originally paid by petitioner merely 'deposit' and not 'duty' - Refund admissible - Section 1 IB of Central Excise Act, 1944.
Commissioner of C.Ex., Nagpur v. Abhideep Chemicals Pvt. Ltd. Holding -2002 (143) E.L.T. 70 (Tri.- Mumbai) "Refund - Limitation - Duty paid under protest - Duty paid while filing appeal to contest liability is payment of duty under protest -Refund not hit by normal limitation period - Para 83 of Apex Court judgment in Mafatlat Industries - 1997 (89) E.L.T. 247 (S.C.) holding "It is difficult to imagine that a manufacturer would pay duty without protest even when he contests the levy of duty, its rate, classification or any other aspect", relied on - Second proviso to Section 11B of Central Excise Act, 1944.
5. Respectfully following the above decisions I hold that the impugned order is incorrect and illegal and is liable to be set aside. Accordingly the appeal succeeds.
The appeal allowed with consequential relief."
2. I have heard ld. DR. Shri C. Mani and ld. Counsel Shri Muthu Venkataraman.
3. The Revenue has stated that the deposits made at the time of filing the appeal before the Commissioner (Appeals) is hit by time-bar under Section 11B of the Central Excise Act and the deposit was not paid "under protest" under erstwhile Rule 233B of CE Rules, 1944. Therefore, the findings recorded by the Commissioner (Appeals) is required to be set aside.
4. On a careful consideration, I notice that the Commissioner (Appeals) has clearly applied the laws laid down in the noted judgments and applied the same to the facts of this case. In the findings of the order-in-original, the assessee paid the duty before filing the appeal before the Commissioner (Appeals) is to be considered as the payment of duty under protest in terms of Page 83 in the Apex Court judgment rendered in the case of Mafatlal Industries (supra) and he has also noted the Tribunal's several judgments and has rightly applied to the facts of the case and held that the refund filed by the appellant is in order. Therefore the refund application is required to be honoured by the authorities by refunding the same. There is no merit in the appeal filed by the Revenue and the same is rejected.