CCE Vs. NESTLE INDIA LTD.

JUDGEMENT

(1.) This is a Revenue appeal against the OIA No. 353/2002 dated 23.10.2002. The Commissioner (Appeals) has upheld the assessee's case for refund of the amount as the same had been deposited during the course of investigation and the appellants have established that duty deposited during the course of investigation is to be considered as payment made under protest. The Commissioner has relied on the Tribunal's rulings on this point to uphold their contention. The findings given by the Commissioner are re -produced herein below: I have carefully examined the facts of the case, the order (original and the submissions made by the appellants in their grounds of appeal. The lower authority has rejected the refund claim for Rs. 5,40,928/ - as time barred holding that the letter of protest was filed after affecting the payment of duty. He has also rejected an amount of Rs. 1,08,595/ - as inadmissible holding that there is no provision to refund the interest paid by the appellant. Perusal of the impugned order (original) reflects that consequent to setting aside of the order (original) No. 4/97, dated 17.11.1997 by Commissioner (Appeals) vide Order -in -Appeal No. 1260/99 dated 21.10.1999, the appellant sought refund of adjudication levies including interest paid by them. This refund was partly allowed and partly rejected on the ground of time bar as the amount of Rs. 5,40,928/ - paid on 13.3.1997 (even before issue of order (original) No. 4/97, dated 17.11.1997) was not paid under protest. The original authority also rejected the claim for refund of interest paid by them on the ground that there is no provision for refund of the same. So far as payment of Rs. 5,40,928/ - is concerned, I find that this amount has been paid on the directions of the department even prior to passing of the order (original) confirming the demand. Except for holding that the payment is hit by limitation of time, as the amount was paid on 13.3.1997 and refund claimed on 22.3.2000 and the amount was not paid under protest, the original authority has not given any other, finding. I find that Hori'bie Tribunal at Kolkata in the decision reported in 2002 (50) RLT 1998 relying on other decisions of the Tribunal including CEGAT, Bangalore held that any amount deposited during investigation of the case and subsequently show cause notice having been dropped by the adjudicating authority should be considered as deemed to have been made under protest and the refund of the same cannot be held to be time barred. In view of the above decision, I am of the opinion that the said amount of Rs. 5,40,928/ - is deemed to be paid under protest and therefore cannot be held to be time barred. Apart from the above, I also find that the appellant has intact filed a letter of protest though belatedly and on this count also it cannot be said that the amount is hit by limitation of time. Therefore, the order rejecting the refund of Rs. 5,40,928/ - on the ground of time bar is not correct and therefore does not sustain. So far as Rs. 1,08,595/ - is concerned, it is seen that this is the amount of interest paid by the appellant, the refund of which has been claimed. It is seen from the findings of the lower authority that the amount has been paid under protest and therefore the question of any time bar does not arise. The sole ground on which the claim has been rejected is that there is no provision to refund interest, I am not inclined to share this view of the original authority. It is a fact on record that consequent to the order -in -appeal, the demand has been set aside in its entirety and the appellant is entitled to refund of all the adjudication levies paid irrespective of the fact whether or not there is a specific provision for refund of interest. The amount, which is not due to the Government, cannot be retained by the exchequer. Therefore, the appellant is rightly entitled to the interest paid. Besides the above, I find that the appellant has rightly relied on the Tribunal's decision reported in (68) ELT 638, wherein it has been held that "interest s not duty, but when the interest has been collected, when it is not to be recovered, that is to be refunded under the normal law". Therefore, the lower authority erred in rejecting the claim on the ground that there is no provision for refund of interest. Accordingly, that portion of the order rejecting the claim for refund of interest is also set aside. In view of the above facts and findings, the appeal filed by M/s. Nestle India Ltd., Nanjangud Succeeds on merit and the same is allowed with consequential benefit of refund. Appeal bearing 394/2000(B -III) is disposed off accordingly.

(2.) We have heard both the sides in the matter. The learned SDR reiterated the grounds taken up by the Revenue in the Appeal Memo. The learned Chartered Accountant submits that the Commissioner has rightly followed the judgements noted by him in the order and the same is clearly applicable to the facts of this case. He submits that the ruling of the Apex Court rendered in the case of Mafatlal Industries Ltd. v. UOI relied in the Grounds of Appeal is infact applicable to the facts of this case. He submits that even the Apex Court has stated in the said ruling that "Where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. Therefore, it is deemed to be paid under protest as held in the judgment rendered in the case of Suri Industries noted by the Commissioner.

(3.) On a careful consideration of the submission, we do not find any ground in the Revenue appeal The Commissioner's findings are very explicit and clear and have been rendered in the light of the Tribunal's judgment cited therein. There is no contra judgments cited by learned SDR. Therefore, judicial discipline requires that we have to follow the ratio of the Tribunal's judgement. Respectfully following the same, we do not find any merit in the Revenue appeal and the same is rejected.