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Commissioner Of Central Excise, Salem vs The Superintenting Engineer

Customs Excise and Service Tax Appellate Tribunal25 August 2015

Ratio decidendi

The rule this decision rests on

Where a refund claim is found to be time barred, the authority rejecting it must give reasons for that finding; a bare conclusion of limitation without reasoning cannot stand. Where a claimant has paid duty under protest and that fact is recorded in the adjudication record, and the appellate authority has not found the claim time barred, the Revenue bears the burden of placing material before the Tribunal to show that the claim was barred by limitation; absent such material, the Tribunal cannot hold the claim time barred and the Revenue's appeal fails.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIE/00401/2011

[Arising out of Order-in-Appeal No.SLM-CEX-000-APP-031-11, dated 10.05.2011passed by the Commissioner of Central Excise (Appeals), Salem]

COMMISSIONER OF CENTRAL EXCISE, SALEM APPELLANT

Versus

THE SUPERINTENTING ENGINEER, TNEB CIRCLE, ERODE RESPONDENT

Appearance:

For the Appellant Shri L. Paneerselvan, AC AR)

For the Respondent None

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 25-08-2015

FINAL ORDER NO.41143/2015

None present for the respondent.

2. Consequent upon the order of the Tribunal dated 15.02.2000 refund arose. The refund so arose was subject to test of unjust enrichment and time bar. But learned Commissioner (Appeals) has recorded that the lower authority held that certain documents were not produced to process the refund claim.

3. The Adjudicating authority had held that consumption of the RCC poles manufactured by assessee does not give rise to the question of unjust enrichment and claim was time barred. While holding so, he did not give any reason to appreciate whether the claim was time barred or not.

4. Heard Revenue. There was protracted litigation between department and the assesse on the dutiability. Ultimately, when the Tribunal decided the issue, the appellant had come with grounds of appeal stating that payment of duty under protest was not disputed. A copy of the letter showing deposit of money under protest was produced before the authority below. Para 11 of the de novo proceedings dated 15.11.2000 records this fact. This comes out from para 3 of the appellate order. The Commissioner (Appeals) did not find that the claim was time barred. In absence of any material from Revenue, it is not possible to appreciate that the claim of the assessee was barred by limitation. Therefore, Revenue appeal is dismissed. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 06-09-2015

DRAFT Remarks

I II III

Date of dictation 25.08.2015

Draft Order - Date of typing 02.09.2015

Fair Order Typing 06.09.2015

Date of number and date of dispatch 08/09/2015

2 E/00401/2011

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