COMMISSIONER OF C. EX. Vs. BHASKAR INDUSTRIES LTD.

JUDGEMENT

(1.) The respondents manufacture cotton yarn falling under Chapter 52. They supplied cotton yarn on 15 -10 -96 and 14 -11 -96 to 100% E.O.U. for export through merchant exporter on payment of additional duty of excise amounting to Rs. 7,117/ - and Rs. 8,987/ - respectively. They, however, filed a refund claim of Rs. 16,104/ - in respect of the above duty on 9 -7 -97 on the ground that the additional excise duty was not liable on the goods cleared to the 100% E.O.U. They were however, issued a show cause notice dated 14 -8 -97 by the Asst. Commissioner of Central Excise Division -II, Bhopal in which it was alleged that the refund claim was not supported by the original documents and the same was also time -barred in terms of the provisions of Section 11B of the Central Excise Act, 1944. They were therefore called upon to show cause why the refund claim should not be rejected. On considering the reply of the party, the Asst. Commissioner of Central Excise vide his Order dated 1 -10 -97 observed that they had filed all the documents relating to the payment of the duty and they had also filed a letter dated 14 -11 -96 with the proper officer wherein they have categorically submitted their intention to pay duty underprotest on the above invoices. Consequently, the Asst. Commissioner sanctioned the refund of Rs. 16,104/ - to the respondents.

(2.) The above order of the Asst. Commissioner was reviewed by the Revenue and an appeal filed before the Commissioner (Appeals). The Commissioner (Appeals), Bhopal vide his Order dated 12 -4 -2002 rejected the appeal of the department by upholding the order passed by the Original Authority.

(3.) This is an appeal against the impugned order of Commissioner (Appeals). I have heard Shri H.C. Verma, JDR for the appellants and Sh. M.P. Devnath, Advocate for the respondents. In the Revenue Appeal, the entitlement of refund to the respondent on merits is not contested. It is however, stated that the duty was paid vide invoice No. 211 and 213 both dated 15 -10 -96 and the same was subsequently cleared vide invoice No. 221 and 222 both dated 17 -10 -96. Another amount of duty of Rs. 8,987/ - was paid vide invoice No. 1 dated 14 -11 -96. It is contended that this duty was not paid under protest as per the provisions of Rule 233B of the Central Excise Rules, 1944. During the course of hearing of this appeal, my attention is drawn by both the sides to the letter of protest dated 14 -11 -96 in respect of the duties of Rs. 3,675/ - paid vide invoice No. 221, dated 15 -10 -96 and another amount of duty Rs. 3,442/ - paid by invoice No. 222, dated 15 -10 -96. Since the protest letter itself is filed on 14 -11 -96, the same did not covered the clearances made on 15 -10 -96 - a date anterior to the date of the letter of protest. Therefore, the refund claims for Rs. 3,675/ - and Rs. 3,442/ - are obviously time -barred and the same have been sanctioned wrongly. As regards the refund of Rs. 8,987/ - claimed in respect of the invoice No. 1, dated 14 -11 -96, it is observed that the protest letter is also of the same date. It is however, observed that whether this duty can be considered to have been paid under protest under the provisions of Rule 233B of Central Excise Rules, 1944 has not been examined by the Original Authority. The matter of refund of Rs. 8,987/ -whether time -barred or not would therefore call for re -examination by the Original Authority and recording his findings afresh. In view of this analysis, the Revenue Appeal against the sanction of the refund amounts of Rs. 3,675/ - and Rs. 3,442/ - is allowed and the case of the refund of Rs. 8,987/ - is remanded to the Original Authority for de -novo consideration and passing an order afresh. Both the sides shall be afforded a reasonable opportunity of representing their case before him. Revenue Appeal is thus disposed of in the above terms.