Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case law/2014-15/2272

Limitation does not apply for refund of duty paid under protest.

Case:-COMMISSIONER OF C.EX., CHENNAI-II VERSUS ELECTRO STEEL CASTINGS LTD.

Citation:-  2014(299) E.L.T. 305 (MAD.)

Brief Facts:-This appeal is filed by the Revenue against the order passed by the Customs. Excise and Service Tax Appellate Tri­bunal 12005 (186) E.L.T. 349 (Tribunal), raising the following substantial ques­tion of law:

"Is CESTAT correct in holding that the assessee's claim will not fall under the jurisdiction of the period of limitation as stipulated in Section 11B of the Central Excise Act, 1944 during the relevant period (six months) since the issue is after the off shoot of Order-in-Appeal passed in favour of the assessee, whereas the Hon'ble Apex Court in the case of M/s. Dena Snuff Pvt. Ltd. v. The Commissioner of Central Excise, Chandigarh reported in 2003 (157) E.L.T. 500 (S.C.) has held that "the period of limi­tation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which date will the period of limitation start to run? It appears on the basis of the para­graph of Mafatlal Industries decision 11997 (89) E.L.T. 247 (S.C.)) which has been relied upon by the Tribunal, it would have to be from the final decision in the assessee's own case?"

The assessee/first respondent-company is engaged in the manufac­ture of cast iron spun pipes falling under CSH 7303.00. The assessee, while calcu­lating the assessable value, did not include the profits earned on account of freight charges for the period from December, 1994 to September, 1995. In pursu­ance of the same, adjudication proceedings was initiated against the assessee. During the adjudication proceedings, the assessee filed a protest letter under Rule 233B on 7-12-1994. After due process of law, the Additional Commissioner passed an order on 17-10-1997, thereby the demands raised in the show cause notice for the period from March, 1994 to September, 1995 was confirmed. Ag­grieved by the same, the assessee preferred an appeal before the Commissioner of Central Excise (Appeals).

The appeal preferred by the assessee before the Commissioner of Central Excise (Appeals) for the earlier period was disposed of on 30-7-1998, thereby setting aside the order of the Assessing Officer. On the strength of such order, the assessee preferred a refund claim for refund of the duty paid during the period from December, 1994 to September, 1995 and the same was ordered by the Assistant Commissioner vide letter dated 5-10-1999 on a sum of Rs. 3,22,897/, During the pendency of the appeal before the Commissioner of Central Excise (Appeals), the assessee paid the duty on freight charges for the subsequent period from 30-10-1995 to 31-5-1997. The assessee also preferred an­other refund claim on 15-4-1999 for refund of duty paid for the period from 30-­10-1995 to 31-5-1997 based on the order of the Commissioner of Central Excise (Appeals) dated 30-7-1998.
 
Appellant contentions:-The appellant submitted that the said refund claim was rejected by the lower au­thority on 29-9-2000 on the ground of limitation that the duty was not paid under protest. The Assessing Officer rejected the refund claim made by the assessee, holding that the same was not filed within 6 months from the date of payment of duty as per Section 11B of Central Excise Act. Following the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.)], the Assessing Officer held that refund claim made on 15-4-1999 for refund of duty was not within 6 months from the date of payment of duty. As such, refund claim was barred by limitation.
 
Respondent contentions:-Respondent submitted that Appellate Authority, on detailed analysis of facts involved and the circumstances under which the duty was paid for the subsequent period and refund claim was made on 15-4-1999, accepted the claim of the assessee that in view of the observation of the CEGAT in the decision reported in 1988 (33) E.L.T. 591 (T), M/s. Engineering Projects (India) Ltd. v. CCE, Calcutta, duty paid during the pendency of appeal proceedings should be treated as "paid under protest" and the refund claim made for the subsequent period should-be treated as in con­tinuation of the earlier claim and hence the time-limit as per Section 11B was not attracted. The First Appellate Authority allowed the appeal by directing the low­er authority to grant refund of duty, after verifying all other aspects. Aggrieved by this, the Revenue went on appeal before the Customs, Excise and Service Tax Appellate Tribunal. Applying the decision of the Apex Court reported in 1997 (89) E.L.T. 247, the Tribunal rejected the Revenue's appeal. Hence, respondent reiterated that refund allowed in their favour is correct as per law.
 
Reasoning of judgment:-High Court heard from both side and perused the record, thus the determination of substantial question of law involved herein depends upon the question of limitation to make any refund claim, which in turn depends upon the mode of payment of duty under protest or not under protest? While according to the Revenue, the payment of duty is without any protest, the assessee's categorical stand is that it is deemed to be paid under pro­test.

Both the Revenue and assessee relied on the same decision of the Apex Court in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247 (S.C.) in respect of their respective contentions whether the refund claim was made under protest or not.

Though it is sought to be contended on the side of the Revenue that the decision of the Supreme Court in the case cited above is more applicable to the case of the Revenue, we are not inclined to accept the same. The Apex Court in para 83 under an identical situation, dealt with the same issue, wherein also payment was made, when the assessee has been contesting the levy of duty for the earlier period. The Supreme Court is compelled to say that-

"Now, where a person proposes to contest his liability by way of ap­peal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufac­turer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect..."

That being the categorical observation of the Supreme Court, the same is square­ly applicable to the facts of the present case in favour of the assessee, wherein also, the payment of duty was made only during the pendency of appeal against very levy of duty for the earlier period.

In other case reported in (2004) 13 SCC 113 = 2003 (157) E.L.T. 500 (S.C.) [Dena Snuff (P) Ltd. v. Commissioner of Central Excise, Chandigarh] relied on by the Revenue, the Supreme Court has in para 5 dealt with the issue relating to actual dispute involved herein, but the same relates to cause of action. In that case, the Hon'ble Supreme Court was called upon to decide starting date of peri­od of limitation, whether it is from the date on which identical third party's case or the assessee's own case was finally decided by the Tribunal. In the case cited above, the payment was made under protest and the assessee originally classi­fied the products under sub-heading 2404.60. Whereas, the Revenue classified the products under sub-heading 2404.50. The CESTAT in the case of another as­sessee held the same product to be classifiable under the Heading 2404.60 and the same was accepted by the Tribunal in favour of the assessee. On the basis of such decision, the appellant filed the application for refund of the duty paid un­der protest. In the meanwhile, the assessee's own case involving same issue came to be decided on 28-8-2003 in favour of the assessee on the basis of the identical finding that the assessee's product would be classifiable under sub-heading 2404.60 and not under 2404.50. When the question to be determined whether the cause of action for refund claim arises after disposal of the assessee's own case or after disposal of the third party-assessee's case, the Hon’ble Supreme Court in para 5 held that the relevant date from which the period of limitation starts to run is from the date on which the assessee's own case finally decided by the Tri­bunal i.e. on 28-8-2003. Nevertheless, it is held that the payment of duty was made under protest was within time and no limitation was applicable to the re­fund claim of such duty and refund was hence ordered and the same was also upheld by the Supreme Court.

Thus, the facts involved in both the cases decided by the Supreme Court were identical and the Supreme Court, while dealing with the issue relat­ing to period of limitation, uniformly held that no limitation was applicable to the payment made under protest. The Hon'ble Supreme Court in the earlier judgment clearly observed that the payment made, when the assessee has been challenging the earlier levy of duty, is deemed to be under protest and not otherwise. Hence, the combined appreciation of both the cases decided by the Su­preme Court would lead to an irresistible inference that the payment made here­in is also deemed to be under protest and no limitation is applicable and the claim is maintainable and is rightly decided by the CESTAT.

In the light of the above discussion, we find no justification to inter­fere with the order of the Customs, Excise and Service Tax Appellate Tribunal. The Civil Miscellaneous Appeal is hence dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.

Decision:-Appeal dismissed.

Comment:-The substance of this case is that the limitation specified under section 11B of Central Excise Act, 1944 is not applicable for refund of duty paid under protest. Moreover, it was also concluded in the case that if the assessee is contesting an issue before appellate authority and the matter is decided in their favour, then the assessee can claim refund of duty paid for the subsequent period on the same issue and the same would be deemed as “duty paid under protest” and so the time limit to file refund claim under section 11B would not apply.

Prepared by: Hushen Ganodwala 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com