VISHNU REFRACTORIES PVT. LTD. Vs. CCE

JUDGEMENT

(1.) RELEVANT facts of the case, in brief, are that the appellants are engaged in the manufacture of Refractory Bricks and Tiles classifiable under Sub -heading 6901.90 of the Schedule to the Central Excise Tariff Act, 1985. They filed a refund claim of Rs. 39,004/ - on 27.4.2006 which was rejected as time barred. Commissioner (Appeals) upheld the adjudication order.

(2.) LEARNED Advocate on behalf of the appellants submits that by adjudication order No. 132/2003 dated 28.08.2003 demand of duty of Rs. 90,502/ - was confirmed and penalty of equal amount was imposed. He further submits that subsequently the original authority granted refund vide order -in -original No. 80(Ref.)2003 dated 30.9.2003 in another proceeding and the present demand of duty and penalty were adjusted against the said refund claim. He further submits that the Commissioner (Appeals) subsequently by Order -in -Appeal No. 605 -609 dated 14.11.2003 set aside the order -in -original No. 132/03. He also submits that in other proceedings there was a confirmed demand of duty of Rs. 1,02,963/ - which was also adjusted vide Order -in -Appeal dated 30.9.2003 along with addendum dated 22.10.2003. He submits that the other amount of Rs. 1,02,963/ - was decided in their favour vide Tribunal's Final Order No. 230 -233/06 -Ex dated 6.3.2006. Thereafter, they filed refund claim of entire amount of Rs. 1,41,967/ - on 27.4.2006. It is his submission that the amount deposited as pre -deposit against the confirmed demand and, therefore, no limitation would apply. In this connection, he relied upon the following decisions of the Tribunal:

(3.) AFTER hearing both sides and on perusal of the records, it is seen that vide Order -in -Original dated 30.9.2003 along with addendum dated 22.10.2003 Dy. Commissioner of Central Excise adjusted the refund claim of Rs. 1,46,967/ - against the demand of duty of Rs. 39,004/ - and demand of Rs. 1,02,963/ -. In both the cases the appellants filed appeal before the appellate authority. By Order -in -Appeal dated 14.11.2003 demand of duty and penalty of Rs. 39,004/ - was decided in favour of the appellants. Further, by order dated 6.3.2006 the Tribunal decided the demand of Rs. 1,02,963/ - in favour of the appellants. As both the amounts were adjusted by Order -in -Original dated 30.9.2003 along with addendum dated 22.10.2003 the appellants filed refund claim after order of the Tribunal. There is no dispute that the amounts were adjusted against refund claim. The appellants filed appeal before the appellate authority. The Tribunal in the case of Laxmi Board & Paper Mills Ltd. (supra) after relying upon the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries reported in : 1997 (89) ELT 247 (SC) held that ratio laid down by the Constitution Bench of the Hon'ble Supreme Court is clear that the amount deposited by the appellants during the course of investigation of the case shall be deemed to have been paid under protest and, therefore, time limit prescribed under Section 11B(1) of Central Excise Act, 1944 would not applicable to the refund claim in question. I find that the Tribunal is consistently viewed in the above mentioned decision that duty paid while filing appeal to contest the adjudication order is deemed to be payment of duty under protest and limitation under Section 11B of the Act would not apply. In the present case, it has already been observed that demand of duty was adjusted against another refund while filing of the appeal before appellate authority and, therefore, limitation under Section 11B would not apply.