Order No. 2540/2003-Wzb/C-Ii, arising from Appeal No. E/1582/97-Bom.. Case: Prakash Cotton Mills Limited Vs Commissioner Of C. Ex., Mumbai. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Order No. 2540/2003-Wzb/C-Ii, arising from Appeal No. E/1582/97-Bom. |
| Counsel | For Appellant: Shri V. Sridharan, Advocate, And For Respondent: Shri J.M. George, Jdr, |
| Judges | Shri Gowri Shankar, Member (T) And Mrs. Archana Wadhwa, Member (J) |
| Issue | Central Excise Rules, 1944 - Rule 233b |
| Citation | 2004 (163) ELT 345 (Tri. - Mumbai) |
| Judgement Date | October 16, 2003 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
Archana Wadhwa, Member (J), (West Zonal Bench, Mumbai)
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The Dispute In The Present Appeal Revolves Around The Claim For Refund Filed By The Appellants, Which Stands Rejected By The Authorities Below On The Ground Of Time-Bar.
1.1.As Per Facts On Record, The Appellants Were Engaged In The Manufacture Of Various Excisable Goods During The Period From 1-4-92 To 12-5-94. The Appellants Paid Duty On The Yarn Used In The Manufacture Of Fabrics Which Are Exported. It Is An Admitted Position That During The Relevant Period, The Appellants, Though Had Applied For 100% E.O.U. Approval, Were Not Having The Said Status, Which Was Granted To Them Only On 13-5-94. With The Grant Of 100% E.O.U., The Appellants Became Entitled To The Benefit Of Exemption Notification No. 123/81, Dated 2-6-81. However, During The Period In Question, They Were Clearing The Goods On Payment Of Duty Pending Approval Of Their Unit As 100% E.O.U. The Appellants Claimed The Refund Of Duty Paid During The Period From 1-4-92 To 12-5-94 Under Their Refund Application Dated 3-8-94. The Said Application Was Returned Back To Them With Directions To File The Claim In A Prescribed Form. The Same Were Subsequently Filed On 28-3-95.
1.2.The Appellants Were Issued A Show Cause Notice Proposing Denial Of The Claim On The Ground That The Same Was Barred By Limitation. The Said Show Cause Notice Was Adjudicated By The Assistant Commissioner Who By Taking The Date Of Filing As 28-5-95, Rejected The Claim As Hit By Limitation. On An Appeal Against The Same, The Commissioner (Appeals) Accepted The Appellants'' Contention That The Very First Letter Dated 3-8-94 Has To Be Considered Relevant For The Purposes Of Deciding The Limitation, But Observed That Inasmuch As The Same Is Also Beyond The Normal Period Of Limitation Of Six Months, The Refund Claim Cannot Be Sanctioned. Accordingly, He Upheld The Order Of The Original Adjudicating Authority. Hence The Present Appeal.
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Shri V. Sridharan, Learned Advocate Appearing For The Appellants Very Fairly Admits That Even Taking 3-8-94 As The Relevant Date, The Refund Claim Would Be Barred By Limitation Being Beyond The Period Of Six Months From The Relevant Date.
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Ho Wever, He Submits That In The Peculiar Facts And Circumstances Of The Present Case, The Duty Should Have Been Considered Having Been Paid Under Protest. He Draws Our Attention To The Correspondence With The Department, Vide Which They Were Constantly Pursuing Their Registration As 100% E.O.U. And Had Approached The Revenue For Giving Them The Proper Guidance To Clear The Goods In The Meanwhile During The Pendency Of Their Application. He Submits That The Cumulative Effect Of The Various Letters Written By The Appellants Pending Finalisation Of Their Registration, Have To Be Treated As If The Appellants Had Paid The Duty Under Protest, Though They Fairly Agree That There Is Nothing In The Letters To Show That The Appellants Would Be Paying Duty Under Protest.
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For The Above Proposition, Learned Advocate Has Placed Reliance On The Various Decisions Which We Would Be Taking Note Of.
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Sri J.M. George, Learned J.D.R. For The Revenue Submits That The Entire Correspondence Relied Upon By The Learned Advocate In Support Of His Contention That The Duty Had Been Paid Under Protest, Only Relates To Procurement Of The Registration Certificate As 100% E.O.U. And There Is Nothing In The Said Letter To Show That During The Pendency Of Grant Of Such Status, The Appellants Would Be Paying Duty Under Protest. Learned J.D.R. Also Submits That The Provisions Of Rule 233b Are Quite Clear, And Lay Down A Definite Procedure Required To Be Followed By The Assessee In Case Of Any Dispute Between The Assessee And The Revenue.
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We Have Considered The Submissions Made...
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