PHOENIX INDUSTRIES LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE claim of the appellants herein filed on 3rd May, 1996 for refund of Rs. 6,97,500/ - paid as duty on 17 -11 -1994 (by debit in PLA) has been rejected on the ground that the claim is barred by limitation.

(2.) WE have heard both the sides and carefully considered the submissions. The basis of the claim is that duty on the recycled PVC granules is payable at the rate of Rs. 15/ - per kg while duty was paid at the rate of 30%.

(3.) THE appellants themselves have been treating the deposit made by them on 17 -11 -1994 as payment of duty, as seen from their reply dated 21 -11 -1994 to the show cause notice dated 9 -8 -1994 for confirmation of duty on recycled granules and from their refund claim dated 20 -5 -1996 (received on 30 -5 -1996). Therefore, the debit of 17 -11 -1994 is to be construed as payment of duty. The decision of the Hon'ble Supreme Court in the case of Orient Paper Mills reported in 1978 (2) E.L.T. (J 328) (S.C.) cited by the learned DR is very relevant to the facts of this case - the Supreme Court has held that under Rule 9A, if duty is paid before removal of the goods, then the date of payment of duty is the critical date. Therefore, in today's case, the critical date is 17 -11 -1994 and since the refund claim has been filed beyond the statutory period of limitation under Section 11B of the Central Excise Act, 1944, it has correctly been rejected as time barred. We therefore, uphold the impugned order and reject the appeal.