SHREE TRANSFORMERS Vs. COMMISSIONER OF C. EX., JAIPUR

JUDGEMENT

(1.) The jurisdictional Asstt. Commissioner had, by order dated 31 -3 -95, disallowed Modvat credit of Rs. 47,723/ - to the appellants on various grounds.

(2.) THE brief facts of the case are as under : - The assessee reversed the Modvat credit in their RG -23A Part -II on 6 -9 -95. While doing so, they recorded their protest by remarking "under protest" in the remarks column of the register. The order of the Asstt. Commissioner was subsequently taken in appeal to the Commissioner (Appeals), who by order dated 15 -9 -99 allowed the Modvat credit. Subsequently, on 13 -10 -99, the assessee filed a refund claim for the aforesaid amount. The jurisdictional Dy. Commissioner rejected the claim on the ground of time -bar. The appeal preferred against his order was rejected by the Commissioner (Appeals). Both the authorities held that the refund claim, filed long after the prescribed period of six months from the date of payment of duty, was liable to be rejected under Section 11B of the Central Excise Act inasmuch as the payment of duty (reversal of Modvat credit as above) was not accompanied by any formal letter of protect as required under Rule 233B of the Central Excise Rules. This decision of the authorities below is under challenge in the present appeal filed by the assessee.

(3.) LD . Consultant, Shri R.G. Bhagwan, submits that the limitation provisions of Section 11B were not applicable to the present case, in which the payment of duty by way of reversal of Modvat credit had been made under protest. He points out that such protest had also been registered in the RT -12 Returns filed by the assessee for the relevant period. In this connection, he has drawn my attention to the copies of the relevant extracts of the RG -23A Part -II and the RT -12 Return, available on record. Ld. Consultant further argues that the reversal of credit made on 6 -9 -95 should be treated as a deposit under Section 35F of the Central Excise Act and that the refund claim should be allowed inasmuch as the time -bar provisions of Section 11B are not applicable to refund of amounts deposited under Section 35F. Ld Consultant further relies on Para 86 of the Supreme Court's decision in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.)].