| SooperKanoon Citation | sooperkanoon.com/13427 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai |
| Decided On | May-13-1998 |
| Reported in | (1999)(114)ELT180Tri(Mum.)bai |
| Appellant | Gujarat Machinery Mfrs. Ltd. |
| Respondent | C.C.E. and C. |
2. The facts of the case are that the Appellant is the manufacturer of glass frit since 1970. There was a classification dispute under the 1st Schedule of Central Excise Act, with the party claiming under residuary entry 68 and department under Item No. 23A(4) of the Tariff as other glass. Tribunal upheld the Departmental claim, which is challenged before the Supreme Court and it is pending, in which stay order dated 30-4-1982 stayed the recovery of 6 months prior to it. The Appellant continued to pay duty under protest vide their letter No. K/CEX/AHD/HD, dated 10-6-19.82. After the introduction of 1985 Tariff Act from 28-2-1986 department suggested to classify glass frit as enamel frit under sub-heading 3207.90. Appellants were not aware of description of products, fully under the 1985 CETA, and they were paying duty under protest prior to 28-2-1986. They submitted classification list under protest effecting from 1-3-1986, and it was approved by the department without any objection. Appellants were advised that correct classification is under 3207.10. They filed classification list from 1-12-1986 steel and glass frit under 3207.10 and it was approved on 20-4-1987. Since the duty was assessed under 3207.90 prior to 1-12-1986 which was not applicable, Appellant submitted refund claim on 27-7-1987 for the duty amount of Rs. 13,540.50 paid from 11-3-1986 to 3-8-1986.
Assistant Collector rejected it ex parte unilaterally on the basis of the orders in appeal regarding the classification of glass frit under erstwhile Tariff Entry of the First Schedule to the Central Excise Tariff Act, 1944 (Item No. 23a(b) of Tariff another glass). On appeal by the Appellant, it was set aside with direction for de novo adjudication. In compliance with it, Assistant Collector issued refund cheque for Rs. 13,540.50. The department preferred appeal contending that the Appellant had not filed protest letter and followed the procedure prescribed under Rule 233B while paying duty, with the proper officer, which was objected by written submission. The Collector (Appeals) without examining the substance of payment of duty under protest, held that the refund claim of the Appellant is barred by time, as the Appellants had not filed letter of protest as required under Rule 233B, and allowed the appeal. Hence this appeal.
3. In support of the appeal the learned Consultant has urged that since the duty is paid under protest by writing a letter and also by notifying in the classification list, which is duly approved by the department, as per the documents produced, there is no question of time bar to claim refund. Provision Section 11B in the Central Excise Act, prevails over Rule 233B of Rules, as clarified in the case of Mafatlal Industries by Justice Ahamadi in 1997 (89) E.L.T. 247. The refund claim is to be granted by allowing the appeal. The ld. DR has urged that the as per order in appeal, there is no protest by the Appellant either by letter or by classification list. Question of unjust enrichment is also involved apart from the time bar. Appellant has paid as per classification list filed under Chapter Heading 3207.90. Period covered is from 1-3-1986 to 3-8-1986 and refund claim is on 28-3-1987 which is barred by the time limit of 6 months. Assistant Commissioner rejecting it, and sanctioned after the remand order. The learned Consultants replied that in the earlier order of Collector of Appeals, protest is upheld, which has become final as no appeal was filed. The ground that there was no protest is raised only in the appeal to Collector by department, which is allowed without clear examination.
4. The point for consideration is whether there are sufficient grounds to allow the appeal? My findings thereon is in the Negative.
5. Perused the order of the lower authorities appeal memorandum records produced in the case and Section 11B and Rule 233B of Central Excise [Rules] and 1997 (89) E.L.T. 247 (S.C.) in the case of Mafatlal Industries v. UOI. Retrospectivity - Refund - Unjust enrichment -Amended provisions of Section 11B of CEA - Deemed protest - In cases of pending decrees and orders, it must be deemed that the duties were paid "under protest' within the meaning of second proviso to Clause (1) of Section 11B of CEA to enable the assessee to file fresh application for refund Under Section 11B(2) and Order Nos. 554 and 555/96, dated 19-9-1996 in E/2473/87-D and E/1262/ 89-D in the case of CCE, Ahmedabad v. Gujarat Machinery Manufacturers. Ltd. and vice versa. Paras 7 to 9 of Delhi Bench holding that frit is classifiable under Tariff Item 23A(4) and refund claim should be kept abeyance till the classification issue pending before Supreme Court at the instance of the party is decided.
6. Procedure to pay duty under protest under Rule 233B of Central Excise Rules is (a) delivery to the Range Officer a letter stating the fact of payment of duty under protest, at that time only and to the grounds for it, (b) obtain his acknowledgment by a letter in proof of payment of duty under protest from the day of delivery of letter to him, (c) make endorsement duty paid under protest in all copies of gate pass application for removal, returns, etc.; (d) within 3 months after delivery of letter of protest, give a detailed representation to the Assistant Commissioner or file an appeal or revision if he has remedy of an appeal or revision available to him against the order or decision for which he paid duty under protest. When the duty is paid under protest neither the limitation of 6 months from the relevant date provided under the Central Excise Act nor general limitation of 3 years is applicable. The relevant date is the date of payment of duty, for the past under period for which duty is due. On service of decision on representation or appeal or revision, assessee shall have no right to deposit the duty under protest. He can be allowed only during the period available to file appeal or revision or during its pendency. If any of die provisions of Rule has not been observed, it shall be deemed that the duty is paid without protest.
7. Section 11B of Central Excise Act deals with the claim for refund of duty. According to it any claimant has to make an application before the Assistant Commissioner for the refund of duty within 6 months from the date of relevant date in the prescribed form, along with the documentary or oral evidence to establish that the amount of duty of excise in relation to which refund claims was collected from or paid by him and the incidence of such duty had not been passed on by him to any person. Any application made prior to 1991 amendment, is deemed to have been made after amendment. Limitation of 6 months shall not apply, where any duty is paid under protest. The Assistant Commissioner on satisfaction that the whole or any part of duty paid by the applicant is refundable, he may pass order accordingly and credit it to the fund.
It has to be paid if the duty of excise paid relates to (i) rebate of duty of excise on excisable goods exported out of Indian on an excisable materials used in the manufacture of goods, exported out of India, (ii) unspent advance deposit lying in balance in the applicant's account currently as found by the Central Excise Commissioner; (iii) refund of credit of duty paid on excisable goods used as inputs in accordance with Rules made or any notification issued under the Act; (iv) Duty of excise paid by manufacturer, if the incidence is not passed on to any other person by him, (v) duty of excise borne by the buyer if the incidence is not passed to any other persons by him; (vi) duty of excise borne by any other such class of applicants notified in the Official Gazette by Central Government Notification can be issued only when Government is satisfied that incidence of duty has been passed on by the person concerned to any other person. Refund shall be made only in accordance with the above, notwithstanding to the contrary conformed in any judgment, decree, order or direction of the appellate Tribunal or any court or any other provisions of this Act or rules made thereunder or any other law for the time being, under Explanation refund and relevant date are explained under A and B (a to f), which are not material. In the light of above legal position, the present case is considered below, in the light of the submission of both sides and records.
8. The admitted fact in the case is that the Appellant, sent a letter of protest on 10-6-1982, prior to CET Act, 1985, showing the ground of payment of duty under protest to the Superintendent, Central Excise, Karmaad, Range III, expressed their grievance against the order of C.C.E., Baroda, classifying frit under Item No. 23A(4), and preferring revision thereon and getting stay order, and pending filing and decision of the revision, they are paying excise duty under protest and complying other formalities under the Act. Application for L-4 license and classification list under Tariff Item 23A(4) and price list Part I under protest and sought for license and approval of both classification and price list. Classification list No. 4/86 is filed from 1-3-1986 under protest as Enamelware - B.D. 15%. Notification No.155/86 showing license No. AND/TI-68/4/75, AND BY 5-9-1986 - letter Superintendent C.E., Anand has intimated its approval by Assistant Commissioner. Classification list verified on 18-3-1986 refers to glass frit under 3207.90, without any endorsement of under protest (Page 11).
Classification list for Glass frit classifying under 3207.10 is approved by Assistant Commissioner, Anand on 20-2-1987 (Pages 27 and 28). None of the other GPs CL bear any protest endorsement. No acknowledgment from proper officer, Superintendent for having received the letter under protest dated 10-2-1986 is produced by the Appellant, which is one of the requirement under Rule 233B. Endorsement of protest, another requirement of the said rule is not forthcoming in other documents. So the requirement of Rule 233B is not at all complied.
9. The period relates to 1-3-1986 to 3-8-1986 and the amount of refund involved is Rs. 13,540.50. Application for refund at page 14 shows GP Nos. 4 to 6,10 and 11 of various dates and PLA Page Nos. 45,46,49, 50.
Details of payment are shown at page 17. Rs. 5,725.75 is paid under GP 4 on 11-3-1986 and Rs. 8,500/- on 12-3-1986 under GP 5, Rs. 4,917.25 on 6-4-1986 under GP 6, Rs. 21.25, on 9-3-1986 under GP 10, and Rs. 1,976.25 on 3-8-1986 under GP 11. They are produced at page 18 to 22 Personal Ledger accounts are produced, Under pages 23 to 25. None of them bears any endorsement as paid under protest. As per the ground for claim, duty was paid from 1-3-1986 under Heading No. 3207.90, after filing the classification list as directed by the department without any protest as discussed above. Fresh classification list for 3207.10 was filed on 1-10-1986 based on the orders of Collector of Appeals, Bombay by his two orders-in-appeals. Assistant Commissioner has classified like that. So from this it is clear that classification list dispute was resolved between the parties, under Central Excise Tariff Act, 1985. At pages 27 and 28. The classification list for 3207.10 to Glass frit was approved on 20-4-1987 after verification on 8-12-1986 by Inspector and Superintendent. But, the classification dispute under 1944 Act still survives as per the orders of Delhi Bench of CEGAT, dated 19-9-1996 between the parties with respect to same goods glass frit. According to it CA No. 117/84 is pending before Supreme Court, and the refund claim cannot be finalised till the above case is disposed of, at the instance of the same Appellant, under his letter dated 28-10-1986 after the period covered in this case viz. 1-3-1986 to 3-8-1986; That case was for the period 1-3-1975 to 14-2-1980. Tribunal has held that as the very basis of refund is in dispute as to correct classification of glass frit refund has to wait the decision in CA 117/84. But in this case, it is not the position. The dispute pertains to different period for different classification under different Act.
Earlier classification under 3207.90 by the department under which glass frit was classified, for which duty is paid, was changed to 3207.10 at the claim of the Appellant by the department. So this case need not await the decision in CA 117/84. Refund can be granted. But the question is whether limitation aspect applies or not.
10. As discussed above, admittedly, there is no separate protest for the classification under 1985 Act for glass frit. As per para 86 in the case of Mafatlal Industries Ltd. v. Union of India, duty must have been paid under the orders of Court pending appeal, then only it will be a payment under protest, and there is no necessity to lodge protest under Rule 233B. But in this case there is no court order to pay duty under the classification of glass frit under 3207.90 by the department. So it will not help the Appellant. As per 1999 (112) E.L.T. 344 (Tribunal) in the case of CCE, Ahmedabad v. H.T. Power Structures, Section 11B of Central Excise Act is considered and explained when it is applicable in para 2 - Refund - Limitation - Protest - Letter of past covers all subsequent price lists, also each price list contains a specific endorsement that duty was paid under post (sic) refund claim not barred by limitation. Applying this decision as discussed above,the Appellant has not complied the requirement of Rule 233B as discussed above. The Appellant has not explained other evidence available to show protest apart from 10-2-1986 letter and one classification list No. 4/86 in which enamelware is shown under Tariff Item 84.19, which is not the case. Protest must be for each classification under each Act. 10-2-1986 Protest confirms to 1944 Act only even as per the appellant in para 1 - page 3 and 4 of appeal memorandum. Renewal in classification list as above does not pertain to 3207.90, for which page 11 confines, which is without protest. So this shows there is no protest for 3207.90 classification of glass frit. There is no specific protest in paying duty in any document, as discussed above. Rule 233B is an enabling provision regarding protest, which is not in consistent with Section 11B of Central Excise Act. Section 11B only says when there is due protest, limitation is not applicable. As discussed above Rule 233B is not complied. Assistant Commissioner has rejected the refund claim on the ground that the case of the Appellant is not consistent. The impugned order has approached the case in the proper perspective. The refund claim is clearly time barred. Protection Under Section 11B of Central Excise Act is not available to the Appellant, for the reasons discussed above. The point raised is answered in the Negative. Hence I pass the following order.
For the reasons discussed above, the appeal cannot be allowed, and it is rejected. Impugned order is confirmed.