CMI LTD. Vs. CCE DELHI

JUDGEMENT

(1.) The authorities below have rejected refund claim filed by the appellants as time barred on the ground that the earlier payment of duty under protest on waste and scrap of insulated wires and cables came to an end with the issue of Adjudicating authority's order dated 24.1.95 by which protest was vacated and C.L. filed by the appellant was approved holding that cut pieces of wires and cable should be considered as waste and scrap only.

(2.) Ld. counsel Shri A. Lal submits that duty was paid under protest during the relevant period and therefore, in terms of clear language of Section 11B of the Central Excise Act. the question of limitation does not arise and therefore, refund claim ought to have been sanctioned to the assessee. In this connection he relied upon the decision of the Tribunal in the case of CCE Calcutta 1985(22) ELT 522 (Tribunal), the decision of the Hon'ble Punjab High Court in the case of Oswal Oil and Ssoap Industries Vs CEGAT 1987 30 ELT 876 (P and H) and decision of the Hon'ble Supreme Court in the case of Samrat International (P) Ltd. Vs CCE 1992 (58) ELT 561 SC.

(3.) On the other hand Ld. D.R. Shri Jagdish Singh, submits that none of the case law cited by the appellants deals with the situation like present one where the protest has been formally vacated by the issue of adjudication order and come protest stands vacated, the appellants should have filed their claim for refund within six months from the date of receipt of adjudication orders dated 24.1.95. He therefore, urges the bench to uphold impugned order. I have carefully considered the rival submission Although there is no dispute that the appellants were paying duty under protest on cut pieces of wires and cables during the period for which they claimed refund, it is a fact that with the issue of adjudication order No. 7/95 dated 24.1.95, the earlier protest stood vacated. Therefore, Ld. DR is correct in his submission that refund claim ought to have been filed within 6 months from the date of receipt of the order vacating the protest. Since refund claim has not been filed within the above mentioned period, it has been rightly rejected as barred by limitation the case law cited by the is distinguishable on facts.