Custom, Excise & Service Tax Tribunal
M/S Empire Industries Ltd vs Cce Mumbai Iii on 13 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/2271, 2673/06 Mum
(Arising out of Order-in-Appeal No. AT/220/M-III/2006 dated 31.03.2006 and AT/303/M-III/2006 dated 28.04.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s Empire Industries Ltd.
:
Appellant
Versus
CCE Mumbai III
Respondent
Appearance Shri J.F. Pochkanwala, Sr. Advocate For appellants Shri V.C. Khole, Jt. Commissioner (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 13.03.2014 Date of Decision : 13.03.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeals against the impugned orders for denying the refund claim on the ground of limitation as per Section 11B of the Central Excise Act, 1944.
2. As the issue is common in both the appeals therefore, both the appeals are taken up together for consideration and disposal.
3. Brief facts of the case are that the appellants availed MODVAT credit on inputs and other petroleum products used as fuel in the manufacture of glass bottles. On 11.06.92, the Revenue directed the appellant that the credit should be restricted to 10% instead of 15% as per Notification 14/1992 which means restriction with retrospective effect from 23.07.1996. The appellant paid the differential amount of duty for the period 23.07.1996 to 02.05.1997 (01 April 1997 to September 1998 in respect of the Appeal No. E/2271/06 and for the period 23.07.1996 to 31.03.1998 in respect of Appeal No. E/2673/06.) The appellant also paid some amount for the period April 98 to September 98 which was challenged by the appellant before this Tribunal and this Tribunal held that the appellants are entitled to the credit to the tune of 15% instead of 10%. Therefore, the excess amount reversed by the appellant is required to be refunded. This order was passed on 25.03..2004. After obtaining this order from this Tribunal the appellant filed a refund claim for the period in question on 18.04.2004 which was rejected by both the lower authorities as time barred as per Section 11B of the Act. Aggrieved by the said orders, the appellants are before me.
4. Heard both sides.
5. The learned Counsel for the appellant submits that in their own case for the subsequent period when they succeeded that they are not required to pay the differential amount therefore, they filed a refund claim. Therefore they are entitled for refund which is filed within one year from the date of passing the order for the subsequent period by this Tribunal. Therefore, the refund claim is to be treated as within time.
6. It is a case wherein the appellant has paid the amount in dispute during the period 23.07.2006 to 31.03.1998 and no protest for the said amount has been made and the same has been accepted by the appellant. The appellant has challenged the subsequent payment made by them for the period from April 1998 to September 1998. No one has stopped the appellant to file an appeal against the payment made for the impugned period. In these circumstances, I do agree with the observations made by the lower authorities that the refund claim has not been filed within the time period prescribed as per Section 11B of the Act. Therefore, I do not find any infirmity with the impugned order that the refund claims are time barred. In view of the above, the appeals filed by the appellant deserves no merits hence dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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