By CA Puloma Dalal, CA Jayesh Gogri,CA Mandar Telang, Chartered Accountants
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Where assesse filed refund claim in the year 2002 within one month of the rejection of Revenue’s appeal to the Tribunal, in respect of amount debited to Cenvat account in 1996, refund claim not time-barred.
Facts:
Prior to adjudication proceedings, the assessee debited their CENVAT credit account on various dates, by following Revenue’s view. However, proceedings were initiated resulting in confirmation of demand by the Adjudicating Authority. The said order was set aside by Commissioner (Appeals). Revenue’s appeal against the order of Commissioner (Appeals) was rejected by the Tribunal and resultantly, the assessee was entitled to refund of amount debited from CENVAT account. A refund claim was filed within a period of one month of the rejection of Revenue’s appeal by the Tribunal. This refund claim was rejected on the ground of time-bar. Commissioner (Appeals) allowed assessee’s appeal relying upon CCE vs. BCL Forgings Ltd. 2005 (192) E.L.T. 922 (Tri. – Mumbai), Hutchisom Max Telecom Pvt. Ltd. vs. CCE, Mumbai 2004 (165) E.L.T. 175 (Tri. – Del) and Shree Ram Food Industries vs. Union of India 2003 (152) E.L.T. 285 (Guj) wherein it was held that payments made pursuant to department’s threats are not voluntary payment and hence limitation under section 11B is not applicable in that case. Further, the appeal against an assessment order or demand order amounts to protest and a formal letter of protest is not necessary.
Held:
Tribunal held that apart from reiterating that debit entries were made by assessee without any threat or coercion, the revenue has only contended that the decisions relied upon by the Commissioner (Appeals) are not applicable, without giving any details as to how the said decisions involving the same legal issue, are not applicable to the facts of the case. Merely because department has filed appeal against Tribunal’s judgment in the case of BCL Forgings Ltd. (supra), before Bombay High Court, Tribunal’s decision do not become inapplicable. It was noticed that Commissioner (Appeals) recorded observations and findings that the debit entry was countersigned by Superintendent (Preventive) and the show cause notice itself mentions that the debit was made on pursuance of the officers of the Central Excise. Accordingly, the Revenue’s appeal was dismissed.
