Refund claim - Limitation - Protest payment, proof -

2008 (232) E.L.T. 701 (Tri. - Mumbai) IN THE CESTAT, WEST ZONAL BENCH, MUMBAI Shri M.V. Ravindran, Member (J) RADIANT ENGINEERS Versus COMMISSIONER OF CENTRAL EXCISE, PUNE-I Final Order No. A/527/2008-WZB/C-II/(SMB), dated 26-6-2008 in Appeal No. E/1681/2003 Refund claim - Limitation - Protest payment, proof - Rejection on the ground that TR-6 challan under which amount claimed was deposited does not show that it was paid under protest and no protest letter was lodged with Department under Rule 233B of erstwhile Central Excise Rules, 1944 - PLA clearly shows that amount was paid under protest - Rule 233B ibid attracted when assessee wishes to pay duty under protest for subsequent clearances - Amount was debited in PLA on issuance of show cause notice and therefore Rule 233B ibid not attracted - Provisions of limitation under Section 11B of Central Excise Act, 1944 not applicable. [para 3] Refund claim - Unjust enrichment - Appellants have filed certificate from Chartered Accountant and affidavit from their proprietor indicating that amount was not recovered from customers - Appellants could not have recovered the amount from their customers after issuance of show cause notice for past clearances - Both lower authorities have not disputed these two documents - In the absence of any evidence, these two documents cannot be disbelieved - Appellants have proved that incidence of duty was not passed on to customers - Impugned order set aside - Section 11B of Central Excise Act, 1944. [paras 4, 5] Appeal allowed REPRESENTED BY : Shri K.P. Udas, C.A, for the Appellant. Shri S.G. Dewalwar, SDR, for the Respondent. [Order]. - This appeal is directed against Order-in-Appeal No. P-1/89/2003 dated 12-3-2003. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the refund claim of the amount paid by the appellant. The appellants paid an amount of Rs. 54,512/- during the course of investigation and mentioned the same in their PLA has being paid ‘under protest’. Subsequently they contested the allegations and the show cause notice, successfully before the higher authorities, consequent to such successful challenge, they filed a refund claim of the amount so debited. The said refund claim was rejected by the adjudicating authority on two grounds i.e. that the amount has not been paid under protest and the appellants have not given evidence regarding the passing of the incidence of duty. On an appeal, ld. Commissioner (Appeals) also held as under :- “I find that as regards the time bar aspect the appellants had debited duty on 30-10-1995 i.e. prior to issue of order which is dated 29-9-1997 and hence it cannot be said that it is deposit under Section 35F. Therefore, provisions of Section 11B are applicable. The appellant's contention is that while debiting they have debited “under protest”. On perusal of PLA it is sent hat the words “paid under protest” are appearing. However, on TR6 challan No. 5 dated 30-10-1995 no such endorsement has been made under which they have deposited the said amount of Rs. 54,512/-. I find that no protest letter was lodged with the Assistant Commissioner in terms of erstwhile Rule 233B of Central Excise Rules, 1944 which were applicable in the case. As regards unjust enrichment the appellants’ submissions is that they had produced the Chartered Accountant's certificate. However, they have not produced any documentary evidence in the form of certificate from respective customers in this regard and mere Chartered Accountant’s certificate may not suffice. In view of above I do not find any infirmity in the order passed by Adjudicating Authority”. On the perusal of the records I find that the appellants while debiting the amount of Rs. 54,512/- in the PLA clearly indicated that the said amount has been paid ‘under protest’. Just because the appellant had not mentioned the amount is being paid under protest as TR-6 challan, would in itself cannot take away the fact, that the amount has been paid by the appellant ‘under protest’. I find that the findings as to no protest letter was lodged with the Assistant Commissioner in terms of erstwhile Rule 233B of Central Excise Rules, 1944, are totally mis­directed as the provisions of Rule 233B would come into play, only when an assessee wishes to pay the duty ‘under protest' for the subsequent clearances if any. In the case before me, the issue is of debit of the amount on the issuance of show cause notice upon the appellant. To my mind, the appellants have demonstrated successfully that they have paid the duty amount ‘under protest’. As such, the provisions of Section 11B of CEA, 1944, as regards the time-bar does not arise in this case. 4. As regards the unjust enrichment, I have found that the appellants have produced Chartered Accountant’s certificate. I also find from the records that the appellants have also filed an affidavit of the proprietor of the appellant. The combined reading of affidavit and the Chartered Accountant's certificate would indicate that the appellants have not recovered the amount from their customers. It is also un-comprehensible how the appellant could have recovered the amount from the customers when he paid the amount on the service of show cause notice for the clearances already made. Both the lower authorities have not disputed the chartered accountant certificate and the affidavit filed by the proprietor. In the absence of any evidence that the amount has been passed on, I find that there is no reason to disbelieve the said certificate issued by the chartered accountant and the affidavit filed by the proprietor of the appellant-firm. To my mind, the appellants have demonstrated that they have not passed on the incidence of duty/amount claimed, as refund, by them from the department. 5. Accordingly, the impugned order is liable to be set aside and I do so. The appeal is allowed with consequential relief, if any. (Pronounced in court on 26-6-2008)