Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

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