Bhor Industries Ltd vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. PIII/225/2004 dated 8.12.2004 passed by Commissioner of Central Excise (Appeals), Pune-III)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :

CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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Bhor Industries Ltd. Appellant Vs. Commissioner of Central Excise, Pune-II Respondent

Appearance: Shri Mayur Shroff, Advocate, for appellant Shri V.K. Shastri, Assistant Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 22.4.2015 Date of Decision: 22.4.2015

ORDER NO

Per: P.K. Jain

Brief facts of the case are that one Kamalakshi Finance Corporation Ltd. was manufacturing PVC insulated tapes on behalf of the appellant. There was dispute about the classification of the same. The Revenues contention was that the same are classifiable under Heading 3919 attracting excise duty of 25% + 5% SED while Kamalakshi Finance Corporation Ltd.s contention was that the same are classifiable under 8546 attracting duty of 15% + 5% SED. The matter was finally decided under 8546.

2. The appellant filed refund claim in view of this Tribunals order No. C-I/3823/WZB/2000 dated 25.10.2000 in appeal No. E/641/95. The said order was passed in respect of Kamalakshi Finance Corporation. However, in para 5 of the said order, there were certain observations and consequent to these observations, the present appellant has filed the refund claim. The said refund claim was rejected besides other things on limitation. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) in the impugned order upheld the order of the original authority and upheld the rejection on various grounds including limitation. Aggrieved by the said order, the appellant is before this Tribunal.

3. Heard both sides.

4. We find that the Commissioner (Appeals) has decided the matter relating to time limitation in view of the Tribunals decision in the case of National Winder vs. CCE, Allahabad reported in 2000 (38) RLT 424. The learned counsel submits that the said decision was taken up to the Honble Supreme Court and the Honble Supreme Court in the case of National Winder vs. CCE, Allahabad reported in 2003 (154) ELT 350 (SC), held in favour of National Winder, which in effect meant that the protest lodged by Kamalakshi Finance Corporation would also be applicable for Bhor Industries Ltd. It was further submitted, however, the Honble Supreme Court in the case of CCE, Mumbai-II vs. Allied Photographics India Ltd. reported in 2004 (166) ELT 3 (SC), had taken a contrary view.

5. The learned AR reiterates the finding of the Commissioner (Appeals) and submits that the protest lodged by Kamalakshi Finance Corporation cannot be made applicable to the appellant as the appellant has never protested. It was also submitted that that the Honble Supreme Court in the case of Allied Photographics India Ltd. has already taken a view that the decision of the Supreme Court in the case of National Winder (supra) is per incuriam. In view of the said position, the refund claim is barred by limitation. It was also submitted that even on merits, the appellant has no case as the goods were cleared by Kamalakshi Finance Corporation Ltd. not to the appellant but to various other persons who were the customers of the appellant and in the document, higher rate of duty was collected and, therefore, even on merits, the case will be hit by doctrine of unjust enrichment.

6. We have considered the rival submissions. It is not in dispute that the appellant has filed the refund claim much after the time limit prescribed under the law. The only point that was made is that Kamalakshi Finance Corporation Ltd. had paid the duty under protest. It is the contention of the appellant that the protest made by Kamalakshi Finance Corporation Ltd. would be applicable for them only. We note that the Honble Supreme Court in the case of Allied Photographics India Ltd. (supra), in para 15, has observed as under:-

15.Mr. Ganesh, learned Senior Counsel appearing on behalf of the respondent vehemently urged that the issue arising in the present matter is squarely covered by the decision of Division Bench of this Court in the case of National Winder v. Commissioner of Central Excise, Allahabad [2003 (154) E.L.T. 350] in which it has been held that if duty is paid by a manufacturer under protest then limitation of six months will not apply to a claim of refund by a purchaser. For the reasons given hereinabove, we hold that the said judgment is per incuriam. At this stage, it is important to note that the Division Bench judgment [Honble S.N. Variava and B.P. Singh, JJ.] in the case of National Winder (supra) was delivered on 11-3-2003. However, on 13-11-2003, the Division Bench [Honble S.N. Variava and H.K. Sema, JJ.], has referred the matter as stated above to the Larger Bench in the light of conflict which the Division Bench noticed between the earlier judgments of this Court on one hand and Paragraph 104 of the judgment of the Constitution Bench of nine-Judges in the case of Mafatlal Industries Ltd. (supra). Hence, by this judgment, we have clarified the position in law.

7. In view of the above decision of the Honble Supreme Court, we do not find any merits in the contention of the appellant that the refund claim has been filed within the prescribed time limit. We are not going into the question of locus standi of the appellant as also doctrine of unjust enrichment. The appeal is dismissed.

(Pronounced in Court)

(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)

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