Customs, Excise and Gold Tribunal - Mumbai
The Commissioner Of Central Excise vs Kohinoor Industries on 1 March, 2004
ORDER K.D. Mankar, Member (T)
1. This is a revenue appeal against the order-in-appeal passed by the Commissioner (Appeal). The Commissioner (Appeals) allowed the refund of Rs. 50,000/- paid by the respondents as a pre-deposit on 27/07/96. The matter regarding the evasion of duty was under investigation, which was finally dropped by the Commissioner in the adjudication order dated 12/04/99. Consequently, the respondent's claimed refund of the said amount of Rs. 50,000/-. The Assistant Commissioner rejected the claim on the ground that payment was not under protest. Therefore, the claim having been filed beyond the period of six months was held as time barred under Section 11B of Central Excise Act, 1944. The Commissioner (Appeals) reversed the findings and allowed the appeal. The revenue's appeal challenges the findings of the Commissioner (Appeals). The commissioner (Appeals) noted that the refund was filed within six months from the date of the order of the Commissioner. The case laws quoted by the Commissioner (Appeals) to support of his findings, are disputed.
2. Heard both sides.
3. The respondents have furnished copies of the judgment of CEGAT in the case of Prempreet Textile Industries Ltd. Vs. CCE, Surat reported in 2003 (158) ELT 767 (Tri.Del.) wherein it has been held that, the deposit made during investigation is to be treated as a pre-deposit, under the provisions of Section 35F. Hence, the claim cannot be rejected as barred under Section 11B of the Act.
4. I also note that, when the matter is under litigation, the payment made during the litigation has to be treated as the payment made under protest, as held by the CEGAT in the case of CCE Nagpur Vs. Abhideep Chemicals reported in 2002 (49) RLT 984 (Tri.Mum). In the said judgment, the Supreme Court decision in the case of Mafatlal Industries reported in 2002 - TaxindiaOnline - - SC has been analysed in detail and held that, such a payment is the payment made under protest, notwithstanding, the procedure of Rule 243B was not followed.
5. In view of the above discussion, I find that the revenue's appeal is without any merit. The same is accordingly rejected.
(DISCLAIMER: Though all efforts have been made to reproduce the order correctly but the access and circulation is subject to the condition that Taxindiaonline is not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions.)