Refund claim filed on the first date but retuned du to some lacunae – date of filing of claim will be the first date and not subsequent dates

PJ/Case Laws/2011-12/1246

Refund claim filed on the first date but retuned du to some lacunae – date of filing of claim will be the first date and not subsequent dates – claim not time-barred.

Case:Indra Processors v/s Commissioner of Central Excise, Jalandhar

Citation:2009 (236) E.L.T. 164 (Tri. – Del)

Issue:- Refund claim filed on the first date but retuned du to some lacunae – date of filing of claim will be the first date and not subsequent dates – claim not time-barred.

Brief Facts:- Appellants are engaged in processing of man-made fabrics with the aid of power steam, and hot air stenter. They paid duty under the compounded levy scheme under Section 3A of the Central Excise Act, 1944. The duty was paid on the basis of size of the chamber.

A doubt arose as to whether the duty was also demanded on the galleries which were pollution control equipment.

The Supreme Court in the case of CCE, Jaipur v Sangam Processors (Bhilwara Ltd.)[2002 (146) E.L.T. 254 (S.C.)] it was held that duty is not payable on galleries. Accordingly, the appellants filed refund claim of duty paid on galleries.

The refund claims for the period from June, 1999 to November, 1999 and 16. 12.98 to 31.01. 1999 were rejected on the ground of unjust enrichment and the refund claim pertaining to the period December 1999 and February 2000 were rejected on the grounds of unjust enrichment and time bar.

In appeal before the Tribunal, the Tribunal dismissed appeals as the dispute regarding duty liability under the compounded levy scheme under Section 3A of Central Excise Act, 1944, no proceedings can continue.

In appeal, the High Court set aside the order of the Tribunal in respect of appellants and the matter was sent back to the Tribunal for deciding the issue on merit, after taking into consideration of various pleas raised by the appellants including the plea that the incidence of duty has not been passed on to the consumers because their sale price continued to be the same which was prevailing before the grant of benefit of duty under Section 3A of the Act and also as to whether refund is time barred.

Appellant’s Contention:- Appellant contended that this case may be remanded to the Adjudicating Authority for verification of the records in respect of unjust enrichment. Regarding time bar issue, appellant submitted that they had filed refund claim on 26-6-2000 which was subsequently returned back by the authorities and various correspondences had taken place. They further submitted that ultimately they again filed the refund claim in the month of September, 2003 at the instance of Central Excise officers. Appellant drew the attention of the Bench to the various correspondences which were placed before the Commissioner (Appeals).

Appellant submits that they had placed the above correspondences before the Commissioner (Appeals) which was not disputed.

Respondent’s Contention:- Respondent submits that the Commissioner (Appeals) observed that the appellants failed to place on record any evidence that the department had asked to file the refund claim during the month of September, 2003.

Reasoning of the Judgment:- The Tribunal found that the appellants had placed evidences to establish that the refund claim was filed on 26th June, 2000 which was not accepted by the Commissioner (Appeals) on the ground that the appellants had not placed before the Adjudicating Authority. So, the finding of Commissioner (Appeals) that the appellants failed to produce the evidences that they have filed the refund claim in the month of September, 2003 at the instance of the Department, is contradictory. In any event, it is apparent from the face of record and the appellants filed the refund claim on 26-6-2000. So, the refund claim cannot be rejected on the ground of time bar.

Regarding unjust enrichment, the Tribunal found that the appellant had placed the certificate of the Chartered Accountant in respect of unjust enrichment, certifying the schedule of the balance sheet. It was held that this issue is required to be verified by the Adjudicating Authority. Impugned order rejecting refund claims on the issue of time bar set aside. Matter remanded for verification of evidences pertaining to unjust enrichment.

Decision:- Appeals allowed by way of remand.

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PJ/Case Laws/2011-12/1246

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