CESTAT allows Excise Duty Refund as amount was paid under protest during Pendency of Litigation and was not Time-barred [Read Order]

The Chennai Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) allows Excise Duty Refund as amount was paid under protest during pendency of litigation and was not time-barred.

The appellant is engaged in the manufacture of cement. During the course of manufacturing cement, various kinds of capital goods are used of which some lose their efficiency with continuous usage. These used capital goods become unfit for further use and they are discarded as worn out capital goods and sold as waste and scrap. As these goods are sold as waste and scrap, the appellants were of the view that no duty is payable.

The Department verified the records of the appellant and informed them that they have to pay duty on the worn out machinery cleared as waste and scrap. Thereafter, the appellant vide their letter submitted that since the goods are cleared as ‘waste and scrap’, they are not liable to pay duty; however, it was stated that they would be paying duty under protest.

The Assistant Commissioner, LTU, Mumbai adjudicated the Show Cause Notice vide Order-in-Original whereby the demand of Rs.7,54,303/- was confirmed along with interest and imposed penalty. The amount already paid by the appellant was appropriated. Aggrieved by such an order, the appellant filed an appeal before the Commissioner (Appeals), LTU, Mumbai and the appeal was allowed by setting aside the demand.

Though the appellant was eligible to claim refund of the amount of Rs.10,18,495/- (Rs.7,54,303/- being the duty plus Rs.2,64,192/- being the interest), the appellant did not prefer an application for refund. With the introduction of G.S.T., the LTU, Mumbai was dismantled and all the case files of the appellant were once again transferred to the respective jurisdiction under the G.S.T. regime.

The appellant is aggrieved by the rejection of its claim for refund of duty of Rs.7,54,303/- and interest.

The coram of Judicial Member, Sulekha Bevi C.S. noted that the litigation with regard to the demand raised in the Show Cause Notice dated 06.08.2009 has continued till 27.02.2018 whereby the Commissioner (Appeals), Coimbatore has set aside the demand, interest and penalties confirmed in the Order-in-Original. Though after the first adjudication and consequent appeal (whereby the demand was set aside), the appellant ought to have filed the refund claim within a period of one year, since the Department has adjudicated the Show Cause Notice for a second time and confirmed the demand again, it cannot be said that the refund claim filed by the appellant is time-barred. In fact, the refund claim is filed within one month after passing of the second Order-in-Appeal which is dated 27.02.2018.

“The claim having been made within one year from the date on which the demand was set aside by the Commissioner (Appeals) finally, I am of the view that the rejection of refund claim as time-barred under Section 11B of the Central Excise Act, 1944 is not justified. Moreover, the amount having been paid as duty pursuant to the Show Cause Notice, the question of unjust enrichment does not arise,” the Tribunal ruled.

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