Custom, Excise & Service Tax Tribunal
M/S. South Eastern Coalfields Ltd vs Commissioner Of Central Excise, Kol-Iv on 8 October, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos. Ex.Ap.210-211/05
(Arising out of Order-in-Appeal No.268-270/KOL-IV/2004 dated 27.12.2004 passed by the Commissioner(Appeal-IV) of Central Excise, Kolkata.)
FOR APPROVAL AND SIGNATURE
HON'BLE SHRI S.S. KANG, VICE PRESIDENT
HON'BLE SHRI M. VEERAIYAN, TECHNICAL MEMBER
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 should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. South Eastern Coalfields Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Kol-IV
Respondent (s)
Appearance:
Shri S.K. Roychowdhury, Advocate for the Appellant (s) Shri A.K. Sharma, Authorised Representative(JDR) for the Respondent (s) CORAM:
Hon'ble Shri S.S.Kang, Vice President Hon'ble Shri M. Veeraiyan, Technical Member Date of Hearing:- 08.10.2009 Date of Pronouncement :- 08.10.2009 ORDER NO............................................................................
Per Shri M. Veeraiyan.
1. In these two Appeals common facts and legal issues are involved and accordingly these appeals are being disposed of by a common order.
2. Heard both sides.
3. The relevant facts in brief are that the Appellants purchased conveyer belts from M/s. Dunlop India, the manufacturer. They claimed refund dated 17.03.1997 for a sum of Rs.51,31,331/-(Rupees Fifty One Lakhs Thirty One Thousand Three Hundred and Thirty One only) relating to the period 20.11.1986 to 29.11.1987 and another claim dated 10.12.96 for Rs.1,54,89,068/-(Rupees One Crore Firty Four Lakhs Eighty Nine Thousand and Sixty Eight only) relating to the period 24.01.1990 to 25.02.1994. They claimed that M/s. Dunlop India have paid the duty on the conveyer belts under protest. Accordingly, as a buyer, they claimed the refund and submitted that the claims have been filed within time. The original Authority held that no evidence were produced before him about the duty having been paid by M/s.Dunlop India under protest. He also held that the refund claims have been filed by the Appellants beyond the time limit of 6 (six) months from the relevant date and accordingly the claims were rejected by him. The Commissioner(Appeals) have upheld the orders of the original authority.
4. Learned Advocate for the Appellants submit that in identical situation the Appellants purchased conveyor belts from M/s. Fenner (India) and the matter went before Chennai Bench of the Tribunal which decided that as purchaser they had filed the claim beyond the time limit and decided against them. The said Order of the Tribunal was challenged before the Hon'ble Supreme Court and the Civil Appeal was initially dismissed and on Review Petition filed by them, the Civil Appeal stands restored before the Hon'ble Supreme Court and thus the matter is sub judice. However, he fairly concedes that there is no stay against the order of the Tribunal.
5. Learned Departmental Representative (JDR) reiterates the findings and reasoning of the Commissioner(Appeals).
6. We have carefully considered the submissions from both the sides and have perused the records.
7. The Appellants have preferred the two refund claims relating to the period from 20.11.1986 to 25.02.1994 beyond the period of 6 (six) months. This fact is not being disputed. It is the claim on behalf of the Appellants that the supplier of the goods namely M/s. Dunlop India have paid duty on the conveyer belts under protest and subsequently it has been settled that duty at higher rate is not payable on the conveyer belts during the relevant period. Both the original Authority as well as Commissioner(Appeals) have clearly held that the Appellants have not produced any evidence that M/s. Dunlop India have paid the duty under protest. Learned Advocate at this stage draws our attention to the letter written by M/s. Dunlop India to the Assistant Commissioner, Chandan Nagar Division which reads as follows :-
Dear Sir, SUB : REFUND CLAIM LODGED BY VARIOUS COALFIELDS/ COLLIERIES FOR EXCISE DUTY PAID ON PVC CONVEYOR BELTS PROCURED FROM DUNLOP INDIA LTD.
We would like to confirm that all duty paying documents in connection with the above refund claims have since been verified by the Officers of Dunlop Range I, who were deputed to our premises for the said purpose.
We sincerely thank you for having agreed to our proposition for deputing your Officers for verification of the said document in our premises.
This is further to our letter MMS/135A-PVC/SDS dt.16/08/97 earlier forwarded to you in response to your letter C.No.V-39/(18)10/Refund/CGR/97/3290 dt.08/07/97.
8. Perusal of the above communication addressed to the Assistant Commissioner, we find that the same does not indicate that duty payment by M/s.Dunlop has been made under protest. No doubt that the payment under protest by the manufacturer definitely protects the manufacturer against their claim becoming time barred. Whether protest made by a manufacturer can give the same protection for claiming refund for all buyers of goods from the said manufacturer which may run to hundreds, thousands on sometimes in lakhs, is a debatable point. In the present case, no reliable evidence has been produced to contradict the concurrent findings of the original Authority and Commissioner(Appeals) to show that the payment was under protest by M/s. Dunlop India. In the identical situation which involve the present Appellant and others the Chennai Bench of the Tribunal vide their final Order No.1094-1095/05 dated 18.08.2005 has held that the protest given by the manufacturer cannot give benefit of extended time for claim of refund and a buyer has to claim the refund within the stipulated time limit prescribed under Section 11B of the Central Excise Act.
9. In view of the above we do not find merits in the Appeals. The Appeals are rejected.
(Pronounced and dictated in the open court.) sd/ sd/ (S.S.KANG) (M. VEERAIYAN) VICE PRESIDENT TECHNICAL MEMBER sm 5 Appeal No.Ex.Ap.210-211/05