Custom, Excise & Service Tax Tribunal
Dcm Shriram Consolidated Ltd vs C.C.E., Jaipur I on 21 October, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing: 20.9.2016 Date of pronouncement : 21/10/2016 Central Excise Appeal No. 60632 of 2013 Arising out of the order-in-appeal No.105 (VC) CE/JPR-I/2013 dated 30.8.2013 passed by the Commissioner (Appeals.), Customs & Central Excise, Jaipur. DCM Shriram Consolidated Ltd. Appellant Vs. C.C.E., Jaipur I .. Respondent
Appearance:
Present Ms. Sukriti Das, Advocate for the appellant Present Shri K. Poddar, A.R. for the respondent Coram: Honble Mr. Ashok K. Arya, Technical Member Final Order No. Per Ashok K. Araya:
M/s DCM Shriram Consolidated Ltd. , Kota is in appeal against the Order-in-Appeal No. 105 (VC) CE/JPR-I/2013 dated 30.8.2013 wherein the refund claim totalling to Rs.16,39,745/- has been rejected. This Order-in-Appeal sustains the Order-in-Original No.342/R/2011 dated 30.9.2011 passed by the Assistant Commissioner , Central Excise, Kota.
2. The impugned Order-in-Appeal mentions that the matter pertains to refund claim of Rs.16,39,745/- for the period of November 1999 to April 2000 on the ground that the appellant reversed the cenvat credit amounting to Rs.12,53,157/- and the interest amount of Rs.3,86,608/- under protest on inputs, used in the manufacture of dutiable final products, lying in stock for the relevant period which is refundable with reference to CESTATs Misc. Order No.224/2011-EX dated 18.3.2011 while allowing the appeal No.1886/2009 on the ground of amending the provisions of Rule 57 AD and the insertion of new Rule 57CCC of the Central Excise Rules, 1944.
3. The appellant has been represented by Ms. Sukriti Das, ld. Advocate and the Revenue by Shri K. Poddar, ld. A.R.
4. Ld. Advocate based on the appeal memorandum inter alia submits as follows:
(i) Rule 233B of Central Excise Rules 1944 is merely procedural and therefore not mandatory in nature.
(ii) Reversal of credit was under protest, therefore, time bar in Section 11B of Excise Act will not apply.
(iii) Reversal of credit is valid in law in view of retrospective amendment in Finance Bill, 2010. The appellant is entitled to the interest on the refund claim.
(iv) In support of the above, the appellant relies on the following decisions:
* Assistant Collector of Central Excise vs. Ramakrishnan Kulwant Raj 1989 (41) ELT 3 (SC);
* C.C.E. vs. ITC Ltd. 2005 (185) ELT 114 (Mad.);
* Indian Pistons Ltd. vs. C.C.E. 1990 (46) ELT 3 (SC);
* Shree Shyam Filaments vs. C.C.E. 2014 (303) ELT 195 (Raj.);
* Denajee Sansthan v. C.C.E. 2015 TIOL 2304 HC ALL CX;
* C.C.E. vs. FDC Ltd. 2009 (238) ELT 708 (Bom.);
* C.C.E. v. Continental Petroleums Ltd. - 2009 (234) ELT 333 (Tri-Ahmd.);
* C.C.E vs. Klasspak Pvt. Ltd - 2005 (179) ELT 365 (Tri-Mumbai);
* Parle Biscuits Pvt. Ltd. v. C.C.E. 2006 (199) ELT 146 (Tri-Mumbai);
* C.C.E. vs. Electro Steel Castings Ltd. 2014 (299) ELT 305 (Mad.);
* Hindustan Zinc Ltd. vs. C.C.E. F.O.A/50860 50861/2016 )Ex. (DB) dated 23.2.2016; and * Itel Industries Ltd. v. C.C.E. 2014 (301) ELT 288 (Ker.).
5. Ld. A.R., Shri K. Poddar reiterates the findings given by lower Revenue authorities. He, inter alia, submits as under:
(i) The appellant did not follow procedure laid down under sub-rule (1) & (5) of erstwhile Rule 233B of the Central Excise Rules, 1944. Therefore, refund is liable to be rejected as time bar under Section 11B of the Central Excise Act, 1944.
(ii) The appellant wrote a letter dated 18.9.2001 to the Range Superintendent to seek verification of reversal of credit only. The main text of the letter was not in compliance of para 1 of erstwhile Rule 233B of the Central Excise Rules, 1944, as under protest was written only on the subject portion of the said letter and not in the main contents of the letter.
(iii) Such letter to the Range Superintendent cannot be considered as even partial compliance of sub-rule (1) of the erstwhile Rule 233B of the Central Excise Rules, 1944
6. I have carefully considered the facts of the case and the submissions of both sides along with the case laws cited.
7. The Revenues contention that the appellants letter dated 18.9.2001 makes a mention as under protest only in the subject part and not in the body of the letter, is factually not correct. The said letter has been part of the appeal paper book where on (page 146) , a copy of the said letter has been given. The said letter has been signed by the General Manager of the appellant company and has been addressed to Superintendent, Range I, Central Excise, Department, Kota. This letter against the subject makes a mention of the following wordings:
Subject: Verification of enclosed statement showing he reversals of Credit and interest reversed under protest. And further in the body of the letter in second paragraph it mentions the following wordings:
We therefore, request you to kindly verify our reversals made under protest. 7.1 Therefore, from the above, it is clear that the findings given by the lower Revenue authorities that wordings under protest are only on the subject part of the letter and not on the main body of the letter is factually wrong. Consequently, the Revenue cannot say that reversal of subject cenvat credit was not done under protest
8. Revenue also contends that Rule 233B procedure has not been followed , therefore, such reversal cannot be called as the duty reversed under protest. The appellant in support cites the Honble Supreme Court decision in the case of Indian Pistons Ltd. vs. C.C.E. (supra), Honble Madras High Court decision in the case of C.C.E. vs. ITC Ltd. (supra) and Honble Rajasthan High Court in the case of Shriee Shyam Filaments vs. C.C.E. (supra).The appellants claim for refund along with interest is valid as per ratio of the above decisions.
8.1 In this regard, the Honble Madras High Court in the case of ITC Ltd. inter alia observes as under:
15. The Supreme Court has been consistently taking the? view that the procedure under Rule 233B should not be treated in an over technical manner. In India Cements Ltd. v. Collector of Central Excise, 1989 (41) E.L.T. 358 (S.C.), the Supreme Court observed :-
A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to holding that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty.
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19. Thus, it is well settled that the meaning of the? words under protest must not be taken in a narrow and pedantic manner. An overall view of the matter has to be taken, and hence we are of the opinion that the Tribunal has taken a correct view considering the facts and circumstances of the case.
8.2 Further, the Honble Rajasthan High Court in Shree Shyam Filaments (supra) in para 28 observes as under:
28. Indisputably, no specific form of protest has been? provided in the Rules. The simple and ordinary meaning of the expression protest is : to express or record dissent or objection. The dissent, disagreement, and objection of the assessee had been clear, emphatic, unequivocal, and unambiguous in the communications aforesaid.
9. Considering the above discussions and the observations of higher judicial fora quoted above, the appellant is entitled to the refund along with interest at the prescribed rate from the date when the refund became due to the appellant. The matter is remanded to the original adjudicating authority who would issue the refund along with interest after verification of the relevant documents and to appellant, within four months of the receipt of this order and after giving necessary opportunity to the appellant for production of necessary documents .
(Pronounced in the open Court on 21/10/ 2016) (Ashok K. Arya) Technical Member scd/ Appeal No.E/210/2012 1