COMMISSIONER OF CENTRAL EXCISE Vs. IRON FACTORY

JUDGEMENT

(1.) THIS Appeal has been filed by the Revenue against Order -in -Appeal No. 120/2003 dated 21.2.2003 by which Commissioner (Appeals) has allowed the refund claim of M/s. Iron Factory holding that protest was not disposed of by the Competent Authority under proper orders.

(2.) SHRI S.C. Pushkarna, learned Departmental Representative, submitted that there was a classification dispute regarding the product manufactured by the respondents who had declared their products as 'bars' falling under sub -Heading 7214.90 of the Schedule to the Central Excise Tariff Act whereas the Department classified it as 'flat' falling under sub -Heading 7211.19 / 7211.30; that during the disputed period the respondents had discharged the duty liability at higher rate; that the classification dispute had been decided by the Appellate Tribunal in favour of the respondents vide Order No. E/216 -379/90 DI dated 20.12.90; that the Appeal filed by the Revenue in the Supreme Court was also decided in favour of the Respondent on 24.7.95 holding that the impugned product as 'bar'; that the respondents had filed the refund claim for refund of duty on 19.5.2000 for the period 3.7.89 to 7.11.89; that the Deputy Commissioner under Order -in -Original No. 286/2000 dated 26.4.2000 rejected the refund claim as time barred; that, however, on Appeal, the Commissioner (Appeals) has allowed the refund claim. He, further, submitted that the Commissioner (Appeals) has wrongly held that the protest once lodged stands only disposed of by the Competent Authority; that when the higher appellate Authority has decided the matter, it is binding on lower authorities and by issue of such Order, the protest gets disposed of automatically; that as in the present matter, the classification was decided in favour of the Respondent in December 1990, the protest got vacated and they were eligible to the refund claim of the duty paid by them within the time specified under Section 11B of the Central Excise Act; that as the refund claim had been filed in May 2000, it is time barred.

(3.) COUNTERING the arguments, Shri Sandeep Singh, learned Advocate submitted that once the protest has been lodged by the assessee, it is required to be disposed of and as protest lodged by them has not been disposed of by the Competent Authority, it continues, to exist and accordingly, the refund claimed by the respondents is not hit by time limn. The learned Advocate also mentioned that the second proviso to Section 11B(1) of the Act clearly provides that the limitation of six months shall not apply where any duty has been paid under protest; that the vacation of the protest after the Tribunal has passed the orders in their favour is for the subsequent period and it does not affect the protest lodged by them for the earlier period.