Customs, Excise and Gold Tribunal - Delhi
Modipon Fibres Company vs Commissioner Of C. Ex. on 13 October, 2003
Equivalent citations: 2004(168)ELT261(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This appeal has been preferred by the appellants against the impugned order-in-appeal vide which the Commissioner (Appeals) has affirmed the order-in-original of the Asstt. Commissioner rejecting their claim for the refund of the duty on the ground of limitation.
2. The learned Counsel has contended that the claim of the appellants could not be held to be time-barred as they filed the same within the stipulated period of six months from the date of passing of the order by the Tribunal in their favour vide which the duty confirmed and deposited by them for the refund of which they had filed the application, was set aside. He has also contended that the very filing of the appeal by the appellants after paying the duty, amounted to payment of duty under protest. Therefore, the period of limitation was to be reckoned not from the date of payment, but from the date of passing of the order by the Tribunal, for claiming the refund. The learned Counsel, in this regard, has placed reliance on the observations made by the Apex Court in the case of Mafatlal Industries, 1997 (89) E.L.T. 247 (Para 83).
3. On the other hand, the learned JDR, has only reiterated the correctness of the impugned order.
4. I have heard both sides and gone through the record. The perusal of the impugned order shows that the refund of the appellants had been held to be time-barred on the ground that they did not lodge a formal protest under Rule 233 while depositing the duty demanded from them. But the Commissioner (Appeals) has lost sight of the fact that immediately after depositing the duty which was confirmed against the appellants by the authorities below, they filed an appeal against the said impugned order before the Tribunal. This circumstance itself was enough to prove that the payment of duty was under protest. In such a situation, in the case of Mafatlal Industries, supra, the Apex Court has categorically ruled that payment of duty would be considered as payment under protest. The learned Commissioner (Appeals) instead of following these observations of the Apex Court recorded in Para 83 of the judgment, has referred to Para 85 of the judgment which did not apply to the present case. The above said observations of the Apex Court has been followed by the Tribunal in the case of CCE, Nagpur v. Abhideep Chemicals Pvt. Ltd., 2002 (143) E.L.T. 70 and Pace Marketing Specialities Ltd. v. CCE, Ghaziabad, 2003 (157) E.L.T. 36. Therefore, the impugned order of the Commissioner (Appeals) holding the refund claim of the appellants to be time-barred, cannot be sustained and deserves to be set aside.
5. The authorities below have not decided the refund claim of the appellants on merits. They had dismissed only on the ground of limitation, which, as observed above, is not sustainable. On merits, as to whether the claim of the appellants is hit by doctrine of unjust enrichment or not has to be gone into by the authorities below. The argument of the learned Counsel that this doctrine of unjust enrichment will not apply as the duty was paid in pursuance of the order passed by the Commissioner (Appeals) which was set aside by the Tribunal and not at the time of clearance of the goods. But this aspect of the matter cannot be determined by the Bench in this appeal, when no findings had been recorded in this respect, by the adjudicating authority or even by the Commissioner (Appeals). Therefore, this aspect has to be gone into by the adjudicating authority.
6. Consequently, the impugned order of the Commissioner (Appeals) is set aside and the matter is sent back to the adjudicating authority for deciding the claim of the appellants on merits in accordance with law after hearing them, The appeal of the appellants stands disposed of in the above terms.