A.R.R. Sales Agency vs Commissioner Of Central Excise

[Arising out of Order-in-Appeal No.66/2006 dt. 1.9.2006 passed by the Commissioner of Customs & Central Excise (Appeals), Tiruchirapalli]

A.R.R. Sales Agency Appellant

Versus

Commissioner of Central Excise, Trichy Respondent

Appearance:

None For the Appellant

Shri K.P.Muralidharan, AC (AR) For the Respondent

CORAM:

Honble Shri R. Periasami, Technical Member

Date of hearing/decision :1.5.2015

FINAL ORDER No.40524/2015

Appellant filed this appeal against OIA dt.1.9.2006 passed by Commissioner (Appeals). The appeal has been listed on several occasions viz. on 7.9.2012, 4.10.2013, 7.2.2014, 9.5.2014 and 19.3.2015, but the appellant repeatedly failed to appear before the Bench nor they have submitted any document or adjournment application. The appeal being very old, and also appellant is not pursuing the appeal, therefore appeal is taken up for disposal on merits based on the documents available on record.

2. The issue relates to refund claim filed on excise duty paid on scented suprari and the claim was rejected by the jurisdictional Asst. Commissioner of Central Excise vide OIO No.21/2001 dt. 30.5.2001 on the grounds of limitation as time-barred. The appellant filed appeal against the OIO and the Commissioner (Appeals) allowed their appeal and set aside the order vide OIA No.226/2002 TRY (ADK) dt. 28.11.2002. Revenue preferred appeal before Tribunal against the above Commissioner (Appeals) order.

3. During pendency of appeal, the adjudicating authority has sanctioned the refund as per the Commissioner (Appeals) order dt. 28.11.2002 and immediately issued protective show cause demanding erroneous sanction of refund. Subsequently, the Tribunal in Final Order No.1058/2005 dt. 29.7.2005 set aside the LAA order dt. 28.11.2002 and allowed the Revenue appeal. The adjudicating authority confirmed the demand of recovery of Rs.2,25,044/- erroneously sanctioned along with interest vide order dt. 28.4.2006 and the Commissioner (Appeals) vide impugned order dt. 1.9.2006 upheld the OIO by relying on above Tribunal's final order dt. 29.7.2005. Hence the present appeal.

3. Ld. A. R reiterated the findings of the LAA and submits that appellant filed C.M.A. before the Hon'ble High Court of Madras against the Tribunal's final order dt. 29.7.2005 and obtained interim stay of recovery. The Hon'ble High Court by its final order dt. 29.11.2013 in C.M.A.No.562 of 2006 and CMP No.2188 of 2006 has dismissed the appellant's CMA and upheld the Tribunal's final order.

4. I have perused the records. The appeal was listed for hearing several times but none appeared and the appellant failed to respond to the notices issued by Registry. The appellant is not interested in pursuing their appeal and on this ground alone the appeal is liable for dismissal for want of prosecution.

5. On merits of the appeal, I find that appellant filed CMA before Hon'ble High Court, Madras and obtained an interim stay against Tribunal's Final Order No.1058/2005 dt. 29.7.2005. The appeal was kept pending as the CMA was not disposed by the Hon'ble High Court. Thereafter, this Bench vide note order dt. 9.5.2014 and 19.3.2015 directed both sides to ascertain the status of the CMA pending before the High Court. When the case was listed on 19.3.2015, Ld. AR informed the Bench the said CMA stands disposed and both sides were directed to obtain a copy of the High Court's order. The Ld. AR has submitted the copy of High Court's order dt. 29.11.2013, wherein the Hon'ble High Court of Madras has dismissed the C.M.A. The relevant paras 4 & 5 of the High Court's order dt. 29.11.2013 in C.M.A.No.562 of 2006 is reproduced as under :-

"4. After hearing the learned counsel for the parties and perusing the materials laced on record, it has to be pointed out that in order to maintain a claim for refund in terms of Section 11-B of the Central Excise Act, 1944, any person claiming refund of any duty of excise and interest, if any, paid on such duty, may make an application for refund of such duty and interest before the expiry of six months from the relevant date, in the manner prescribed and the application should be accompanied by such documents or other evidence to establish that the duty of excise has been paid. Second proviso to Section 11-B (1) provides that the limitation of six months shall not apply where any duty of excise has been paid under protest. On the facts noted above, admittedly, the appellant is not entitled to the benefit of Second proviso to Section 11-B (1). The relevant date for the purpose of this case is the one as defined under Section 11-B (5) Explanation (B) (e), which states that the relevant date shall be, in the case of a person other than the manufacturer, the date of purchase of goods by such person. Thus, the definition of relevant date clearly states against the case of the appellant and as rightly held by the Tribunal, the claim for refund is only barred by limitation. Accordingly, no ground is made out to interfere with the order passed by the Tribunal.

5. Accordingly, this civil miscellaneous appeal fails and is dismissed. No costs. Consequently, connected CMP is also dismissed."

5. The present appeal is an offshoot of refund claim which was originally rejected by the adjudicating authority in his order dt. 30.5.2001 on limitation which is upheld by Tribunal in Final order dt.29.7.2005 and Hon'ble High Court. By respectfully following the order of Hon'ble High Court (supra), I hold that the demand of recovery of erroneous refund with interest is upheld. Accordingly, the impugned order is upheld and appeal is dismissed.

(Operative part of the order pronounced in open court on 1.5.2015)

(R. PERIASAMI) TECHNICAL MEMBER gs

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