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2017 Supreme(Raj) 1466
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR
K.S JHAVERI, VIJAY KUMAR VYAS, JJ.
Man Structural Pvt. Ltd. - Appellant
Versus
Customs, Excise & Service Tax Appellate Tribunal West Block No. II, R.K Puram New Delhi-110066 & Ors. - Respondents
D.B Central/Excise Appeal No. 2 of 2012
Decided On : 01-11-2017
For the Appellant : Mr. Sarvesh Jain
For the Respondents: Mr. Siddharth Ranka
The limitation period of six months under Section 11B(1) of the Central Excise Act, 1944 is not applicable where duty is paid under protest.
Headnote:
CENTRAL EXCISE - REFUND - LIMITATION - PAYMENT OF DUTY UNDER PROTEST - PAYMENT OF DUTY THROUGH PLA AND CENVAT CREDIT - WHETHER THE LIMITATION PERIOD OF SIX MONTHS UNDER SECTION 11B(1) OF THE CENTRAL EXCISE ACT, 1944 IS APPLICABLE WHERE DUTY IS PAID UNDER PROTEST - WHETHER THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE PAYMENT OF DUTY OUT OF PLA FROM THE PAYMENT OF RS. 4 LAC PER TREASURY CHALLAN TR-6 “UNDER PROTEST” IS WITHOUT ANY INDICATE OF PROTEST FROM PLA EXTRACT.
Fact of the Case:
The appellant challenged the order of the Tribunal which reversed the view taken by the Commissioner (Appeals) and allowed the appeal of the department. The issue arose when the appellant was required to debar from taking CENVAT credit pursuant to the order passed on 19.02.2001. The appellant deposited Rs. 400000/- specifically says under protest. However, oversight while depositing the same amount while exercising their CENVAT Credit on 26.04.2001 with protest was not written.
Finding of the Court:
The Court held that the limitation period of six months under Section 11B(1) of the Central Excise Act, 1944 is not applicable where duty is paid under protest. The Court further held that the Tribunal was not justified in holding that the payment of duty out of PLA from the payment of Rs. 4 lac per treasury challan TR-6 “under protest” is without any indicate of protest from PLA extract.
Issues: 1. Whether the limitation period of six months under Section 11B(1) of the Central Excise Act, 1944 is applicable where duty is paid under protest? 2. Whether the Tribunal was justified in holding that the payment of duty out of PLA from the payment of Rs. 4 lac per treasury challan TR-6 “under protest” is without any indicate of protest from PLA extract?
Ratio Decidendi: The Court relied on the following precedents: 1. Shree Shyam Filaments v. Commissioner of Central Excise, Jaipur, 2014 (303) E.L.T 195 (Raj.) 2. Lloyds Steel Industries Ltd. v. Union of India, 2009 9246) E.L.T 114 (Bom) 3. Indian Farmers Fertilisers Co-op. Ltd. v. CMMR. (K-II) Central Excise, 2016 (331) E.L.T 386 (All) The Court held that the payment of duty under protest is a substantive protest in writing and that the Tribunal was not justified in holding that the payment of duty out of PLA from the payment of Rs. 4 lac per treasury challan TR-6 “under protest” is without any indicate of protest from PLA extract.
Final Decision: The Court allowed the appeal and held that the appellant is entitled to CENVAT Credit.
1. By way of this appeal, the appellant has challenged the judgment and order of the Customs, Excise & Service Tax Appellate Tribunal whereby the Tribunal has reversed the view taken by the Commissioner (Appeals) and allowed the appeal of the department.
2. This Court while admitting the appeal on 8.11.2016, framed following substantial questions of law:—
“(3.1) Whether the learned CESTET was correct and justified in ignoring that the amounting of Rs. 3,53,171/- besides having paid through PLA was also debited from CENVAT credit?”
(3.2) Whether the learned CESTAT was justified and correct in holding that the payment of the same duty paid out of PLA from the payment of Rs. 4 lac per treasury challan TR-6 “under protest” is without any indicate of protest from PLA extract.
3. Counsel for the appellant has taken us to the order of Commissioner whereby while considering the case of the appellant Commissioner (Appeals) has observed as under:
“5. I have gone through the case record, submissions made by the appellant in appeal memorandum and at the time of personal hearing. I find that, the refund claim has been rejected on the ground of limitation. The fact that the amount was paid through PLA as well as CENVAT Credit account is not under dispute. The appellant has first deposited the Rs. 400000/- through TR-6 challan in PLA, while making such they mentioned “under protest” and while making debit entry for Rs. 353171/- they have not mentioned “under protest”, therefore the debit made in PLA was not treated as debit under protest. In this regard, I find that merely on the ground that while making debit entry in PLA, the Appellant has not mentioned the words “under protest” and without considering the fact that while making deposit through TR-6, they mentioned “under protest”, denial of refund claim on ground of limitation is not sustainable. The Adjudicating Authority has not given any specific finding as to why the deposit through TR-6 challan under protest is not being considered deposit under protest. In view of these facts, I agree with the Appellant contention that they have deposited Rs. 400000/- amount in Govt. account under protest and utilized the same under protest, they filed refund claim only for Rs. 353171/- which was paid double to the Govt., therefore, the limitation prescribed under Section 11-B (1) is not applicable. Thus, I find that rejection of refund claim on the ground of time bar is not sustainable law. Accordingly, I set aside the same.”
and further contended that earlier also the order which came to be decided, wherein operative part reads as under:—
(I) I hereby confirmed Central Excise demand of Rs. 16,24,872/- (Rupees sixteen lac twenty thousand eight hundred seventy two only) against the assessee and order for recovery along with interest @ 24% per annum (as per the details given in enclosure ‘A’ to the show cause notice) under Section 11A(1) of the Central Excise Act, 1944 read with Rule 49, 173G of the erstwhile Central Excise Rules, 1944.”
4. He has further contended that the issue arises in the petitioner was required to debar from taking CENVAT credit pursuant to the order passed on 19.02.2001 at (Annex-4).
5. Therefore, while depositing Rs. 400000/- specifically says under protest. However, oversight while depositing the same amount while exercising their CENVAT Credit on 26.04.2001 with protest was not written, reads as under:
Date and Sr. No. of entry
Particulars of document
Credit/Debit Basic Excise Duty
Credit 6(i)
Debit 6(ii)
Balance 6(iii)
10 of 26.4.2001
To Invoice 865
59887
11 of 26.4.2001
To Invoice 866
65022
12 of 26.4.2001
To Invoice 867
57277
13 of 26.4.2001
To Invoice 868
