CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
WEST ZONAL BENCH : AHMEDABAD
REGIONAL BENCH – COURT NO. 3
EXCISE Appeal No. 10063 of 2014-DB
[Arising out of Order-in-Original/ Appeal No RJT-EXCUS-000-APP-419-13-14 dated 30.09.2013 passed by Commissioner of Central Excise, Customs and Service Tax-RAJKOT]
Indian Oil Corporation Limited
VERSUS
Commissioner of Central Excise & ST, Rajkot
APPEARANCE :
Shri Sachin Chitnis and Shri Kiran Chauhan, Advocates for the Appellant Shri Tara Prakash, Deputy Commissioner (AR) for the Respondent
CORAM: HON’BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON’BLE MR. C.L. MAHAR, MEMBER (TECHNICAL)
DATE OF HEARING : 12.07.2023 DATE OF DECISION: 21.07.2023
FINAL ORDER NO. 11551/2023 RAMESH NAIR :
Brief facts of the case are that the appellant have cleared warehoused goods on payment of excise duty. They were charging at the rate of 21.6% over and above the price. The State Sales Tax paid to the State Government by the appellant was recovered under the head of ‘Other Charges’. The audit has raised objection that the said sales tax paid as other charges is includible in the assessable value and at the behest of the audit, the appellant had paid an amount of Rs. 2,56,93,502/- vide TR-6 challan No. 3130/003 dated 08.06.2005 and informed to the department vide their letter dated 09.02.2005. The appellant were issued show cause notice dated 02.08.2006 wherein it was proposed to demand interest on the said amount under Section 11AB. The Adjudicating Authority confirmed the demand of interest vide order-in-original No. 2/AC/2008 dated 19.02.2008.
In appeal filed by the appellant the Commissioner (Appeals) by order-in- appeal No. 295/2008/COMMR(A)/RAJ dated 16.10.2008 set-aside the order- in-original dated 19.02.2008 and allowed the appeal. The said order-in- appeal was challenged by the department and Tribunal had dismissed the Revenue’s appeal vide Final Order No. A/10944/2018 dated 24.04.2018. Meanwhile, pertaining to the appellant’s Sidhapur unit, on being pointed out by the department the entire amount of Central Excise duty was paid under protest on 03.01.2006.
- The appellant filed refund claim of duty paid under protest to the range office on 05.01.2006 vide their letter No. SDR/TOP/EA-2002-04 dated 03.01.2006. The department by show cause notice dated 05.05.2006, proposed to appropriate an amount of Rs. 1,94,98,643/- deposited against the aforesaid demand. There was also a proposal for charging interest and imposition of penalty. By order-in-original No. 03/Commr/2007 dated 14.03.2007 demand of the said amount was confirmed by learned Commissioner and the amount paid was adjusted. Interest was ordered and penalty was imposed under Section 11AC. In Appeal against order-in- original dated 14.03.2007, the Tribunal vide order No. A/1666/WZB/AHD/2011 dated 29.09.2011 by majority held that such additional amount would not form part of the assessable value as the same is not profit out of non-manufacturing activity based on the Hon’ble Supreme Court judgment in the case of Baroda Electric Meter Limited – 1997 (94) ELT 13 (SC) and also held that demand was barred by limitation in absence of any suppression on the part of appellant. The department’s appeal (CA No. D-3551 of 2012) against Tribunal’s said order dated 29.09.2011 has been admitted by the Hon’ble Supreme Court and is pending. The appellant in respect of their unit at Sidhpur, based on the decision of the Tribunal in their
favour, filed refund claim for Rs. 2,56,93,502/- vide their letter dated 05.05.2012. The department by notice to show cause notice dated 16.10.2012 the said refund claim was proposed to be rejected inter-alia on the ground that claim is barred by limitation. The Deputy Commissioner, Kutch by order-in-original No. 98/2012-13 dated 27.12.2012 rejected the refund claim based on the ground that claim was barred by limitation. The same was upheld by Commissioner (Appeals) vide impugned order-in-appeal dated 04.10.2013 holding that claim is barred by limitation, therefore the present appeal.
- Shri Sachin Chitnis learned Advocate along with Shri Kiran Chauhan appearing on behalf of the appellant submits that since the amount was not voluntarily deposited but was deposited at the behest of the department therefore, the same may be treated as duty paid under protest and limitation provided under Section 11B is not applicable. He submits that the issue on merit whether duty is payable on other charges has been settled in favour of the appellant only by Tribunal’s order dated 29.09.2011. Therefore, the one year period under Section 11B is applicable from the date of Tribunal’s order i.e. from 29.09.2011 whereas the appellant filed refund claim on 05.05.2012 hence the same is well within the time-limit and same cannot be hit by limitation. He submits that in view of above, the appellants claim is not time barred. He placed reliance on the following judgments:-
- Indian Oil Corporation Limited – 2013 (291) ELT 449 (Tri-Ahmd.) admitted by Supreme Court – 2015 (316) ELT -27 (SC)
- Indian Oil Corporation Limited A/10944/2018 CESTAT Ahmedabad Order dated 24.4.2018.
- Indian Oil Corporation Limited – 2019-TIOL-837-CESTAT-AHMD
- NirlepAlliances Limited – 2018 (362) ELT 915 (Tri-)
- GE Power India Limited – CESTAT Order No.A/12615/2021 dated 12.2021
- Nayara Energy Limited – CESTAT Order No. A/12562/2021 dated 12.2021
- Shri Tara Prakash, learned Deputy Commissioner (AR) reiterates the findings of the impugned order.
- On careful consideration of the submissions made by both the sides and perusal of record, we find that there is no dispute to the fact that it is not the appellant who at their own sou-moto paid the excise duty on the other charges. The said duty was deposited on the behest of department. The matter was further agitated by the appellant of their other unit on merit hence the issue on merit attained finality in favour of the appellant vide Tribunal’s order dated 29.09.2011. Firstly the duty was deposited on the behest of department and it is in the nature of payment of duty under protest for this reason, time limit of one year prescribed under Section 11B is not applicable in the facts of this case. Secondly, the issue on merit whether the other charges are liable for duty has been decided by this Tribunal vide its order dated 29.09.2011. Accordingly on both the counts the appellant’s refund claim is well within the time and not hit by limitation as prescribed under Section 11B. We are of the view that appellant’s refund rejected by lower authorities on the ground of limitation is not sustainable. The sanctioning authority is at liberty to ascertain other aspects of unjust- enrichment, duty payment aspect etc. while sanctioning the refund. The appeal is allowed in the above terms
(Pronounced in the open court on 21.07.2023)
(Ramesh Nair) Member (Judicial)
(C L Mahar) Member (Technical)
KL
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