Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of C. Ex., Chennai-Iii vs Consul Consolidated P. Ltd. on 1 January, 2002
Equivalent citations: 2002(141)ELT792(TRI-CHENNAI)
ORDER
1. This is a Revenue Appeal against the Order-in-Appeal No. 61/2000 (M-III), dated 31-3-2000 passed by the Commissioner (Appeals) upholding the assessee's contention that the amount pre-deposited by them in terms of Section 35F of the C.E. Act, 1944 was only pre-deposit and not payment of duty and the question of depositing it under protest does not arise and the department is required to refund the amount. In this regard he relied upon the Hon'ble Bombay High Court judgment in the case of Suvidhe Ltd. reported in 1996 (82) E.L.T. 177 (Bombay) as also the judgment of the Tribunal in the case of Genera! Engineering Works reported in [1999 (111) E.L.T. 86 (Tribunal) = 1999 (31) RLT 488 (T)]. He has noted that the assessee's contention that para 146 of the judgment in the case of Mafatlal [1997 (89) E.L.T. 247 (S.C.)] applies to the present case and not para 83. In the said para it is held that even duty paid in excess which finally ended in decrees or judgments of the Courts must be deemed to have been paid under protest. He has noted that when this is the position for the duty paid, obviously it will all the more apply to pre-deposit of duty and he has held that the assessee is entitled to the return of the amount.
2. The Revenue is aggrieved by the above finding of the Commissioner (Appeals) and contends that the duty debited in the PLA for fulfilling the requirements under Section 35F cannot be equated to payments in terms of orders, decrees, judgments of Courts and therefore, duty deposited in terms of Section 35F is also covered by the limitations provided under Section 11B and unless the amounts have been paid under protest under the provisions of Rule 233B of the C.E. Rules, the amount cannot be refunded.
3. Shri A. Jayachandran, learned DR reiterates the departmental view and distinguished the judgment relied upon by the Commissioner (Appeals) and pointed out that in view of what is stated in para 83 of the judgment in the case of Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)] the view taken by the learned Commissioner (Appeals) is not correct. Once the amount is credited in the PLA, without protest, even if it is towards pre-deposit of duty, the provisions of Section 11B would apply and therefore, the appellants are not entitled for the return of the amount.
4. None appeared for the respondents and they have sought for an adjournment.
5. As the issue is no longer res integra, the matter is required to be considered in the light of the Hon'ble Bombay High Court judgment (supra) and also the Hon'ble Apex Court judgment in the case of Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)] Therefore, I am not inclined to grant adjournment of the case and I proceed to decide the case. I note that Revenue had filed a Stay petition in this case seeking stay of operation of the impugned order and the Tribunal by Stay Order No, 66/2001, dated 2-2-2001 had not accepted the plea raised by the DR on the issue and the prima facie finding was that the amount which is deposited in terms of Section 35F is not duty and the provisions of Section 11B is not attracted and there are large number of judgments on this issue and it is not denied by the Revenue that the deposit was made towards pre-deposit in terms of Section 35F of the C.E. Act, 1944. This being the position the view expressed by the Commissioner (Appeals) is correct and he has rightly applied the judgment of the Hon'ble Bombay High Court (supra) and also the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra). Therefore there is no merit in the appeal and the same is rejected.