Customs, Excise and Gold Tribunal - Delhi
Cce vs Kaushal Steel Rolling Mills, Channy ... on 2 December, 2003
Equivalent citations: 2004(95)ECC119, 2004(165)ELT255(TRI-DEL), (2004)136PLR481
ORDER P.S. Bajaj, Member (J)
1. In these appeals, the Revenue has made challenge to the impugned order-in-appeal vide which the Commissioner (Appeals) has reversed the order-in-original and allowed the refund of the duty amount to the respondents.
2. The facts are not much in dispute. The respondents are engaged in the manufacture of bars and dispute regarding the classification and rate of duty payable in respect thereof arose between the parties. During that dispute, the respondents deposited the duty at a higher rate, as demanded by the Department under protest. The Classification issue ultimately was decided in their favour by the Tribunal in December, 1990. But that order of the Tribunal was challenged by the Department before the Apex Court and the Apex court decided the matter in the year 1997.
3. The plea taken up by the Department is that the refund claims should have been filed within a period of six months from the date of passing of the Tribunal's order. Having not so done, the adjudicating authority dismissed their claims on the ground of limitation, but that order has been reversed by the Commissioner (Appeals) through the impugned order by holding that since the duty was paid under protest which was never vacated by the Department by passing any order, and that after the passing of the order by the apex Court, the Department was duty bound to refund the excess differential duty charged from the respondents after the clearance of the goods.
4. The learned JDR has contended that the refund claims were required to be filed after the passing of the order regarding the classification by the Department in favour of the respondents and having not so filed within a period of six months from the date of passing of that order which is 20.12.1990, must be held to be time-bared. But i am unable to accept this contention of the learned JDR, keeping in view the facts and circumstances of the case. The order of the Tribunal deciding classification issue in favor of the respondents was challenged by the Department before the Apex court. Therefore, on the strength of that order which was subsidies before the Apex court, the respondents legally could not file any refund claim. They became entitled to the refund of the excess duty paid by them only when the Apex court affirmed the order of the Tribunal by dismissing the appeal of the Tribunal.
5. Besides this, the differential duty was deposited by the respondents under protest as they disputed the classification of their goods propounded by the Department. This protest did not stand automatically vacated on the decision of the appeal of the respondents in their favour by the Tribunal. The dept as observed above rather challenged that order of the Tribunal. Therefore, the protest lodged by the respondents which depositing the duty amount continued and did not stands vacated automatically as averred by the Department in the grounds of appeal. The learned Commissioner (Appeals) has rightly relied upon the ratio of the law laid down in the cases of CCE, Meerut vs Prestige Engg. 1989 (41) ELT 530, wherein it has been observed that the protest of the assessee while depositing the duty has to be vacated by the Department by passing an appealable order. There cannot be any automatic vacation of the protest.
6. It has not been disputed by the Department even in the grounds of appeal that the refund claims of the respondents are not hit by the doctrine of unjust enrichment. The findings of the learned Commissioner (Appeals) in this regard which has been recorded by him after relying upon the ratio of the law laid down by the Apex court in the case of Sinkhai Synthetics & Chemicals Ltd. vs CCE, Aurgangabad, 2002-Taxindiaonline-68-SC-CX , that the refund of duty paid under protest will not be hit by the bar of unjust enrichment, has not been challenged by the Department in the grounds of appeal even.
7. In view of the discussion made above, I do not find any legal infirmity or illegality in the impugned order of the Commissioner (Appeals) and the same is upheld. The appeals of the Revenue are dismissed.