NARMADA PIPES Vs. COMMISSIONER OF CENTRAL EXCISE, RAJKOT

JUDGEMENT

(1.) THE Appellant cleared PVC resin on which CENVAT Credit was taken as such on 19 -3 -2007 on payment of duty for taking appropriate amount from the CENVAT Credit Account. However, the Appellant again paid the duty on 31 -3 -2007. This double payment was noticed only somewhere in February, 2009 and on 17 -2 -2009, the Appellant filed a Refund Claim for the second payment of duty made by them by mistake. However, the Refund Claim has been rejected on the ground that under Section 11B of the Central Excise Act, the same has to be filed within one year from the date of excess payment of duty. Further, reliance has also been placed on the decision of the Larger Bench of the Tribunal in the case of BDH Industries v. CC(A), Mumbai, reported in 2008 (229) E.L.T. 364 (Tri. -LB).

(2.) LEARNED Counsel on behalf of the Appellant submits when the payment has been made twice, the second payment ceases to be in the nature of duty, but has to be treated only as a deposit. Therefore, the refund has to be sanctioned within 3 years as per the provisions of Limitation Act and the time -limit prescribed under Section 11B, would not be applicable in the present case, since Section 11B applies to the Refund Claim of duty and interest only. Further, he also relies upon the Boards Circular F. No. 5/7/71 -CX -1, dated 8 -5 -1971, wherein it was clarified that the limitation of 3 years would be applicable when any payment was made under mistake of law. He also relies upon the decision of the Honble Supreme Court in the case of Commissioner of Sales Tax, UP v. Auriaya Chamber of Commerce, Allahabad reported in 1986 (25) E.L.T. 867 (S.C.).

(3.) I have considered the submissions made by the learned Counsel and I find myself unable to be persuaded by the submissions. The Larger Bench of the Tribunal in the case of BDH Industries Ltd. (supra) has held that whether the payment is due to accounting error or whatever may be the reason, the debit entry in the accounts is only towards the payment of duty and therefore, refund of any amount which is debited in the accounts has to be treated as refund of duty only. Since the Larger Bench has decided that any debit entry made in the accounts towards payment of duty has to be treated as duty, the Refund Claim for the same has to be treated as a Refund Claim for duty paid. In view of these observations of the Larger Bench, the submission that the amount paid for the second time, is only a deposit and cannot be considered as duty, cannot be sustained. Since it is a decision of the Larger Bench of the Tribunal, the decision has to be applied to this case also and the Appeal is required to be rejected. As regards the decision of the Honble Supreme Court in the case of Auriaya Chamber of Commerce (supra), it was rendered on an issue of sales tax, and unless the relevant provisions are compared, no decision can be reached. As regards the clarification issued by the Board, it was issued in the context of Rule 11 and in any case, the Tribunals decision of the Larger Bench is subsequent to both the clarifications issued by the Board as well as the decision of the Honble Supreme Court and therefore, this submission also cannot be considered. Under these circumstances, the Appeal has no merits and accordingly, is rejected. (Pronounced and dictated in the open Court)