M/S. Dharampal Premchand Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 72/CE/APP/NOIDA/2013 dated 25.03.2013 passed by Commissioner of Central Excise (Appeals), NOIDA ]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see 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 of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Dharampal Premchand Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, NOIDA

Appearance:

Shri T R Rastogi, Advocate for the Appellants

Shri A K Dhawan, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 8.4.2015

FINAL ORDER NO. A/ 51490/2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order rejecting their rebate claim of duty paid under section 3A of Central Excise Act, 1994.

2. The facts of the case are that the appellant is a manufacturer of chewing tobacco and unmanufactured tobacco and paying duty under the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination & Collection of Duty) Rules, 2010. During the period 19.11.2010 to 30.11.11, the factory was closed. As per Rule 10 of the said Rules, the appellant is entitled to claim rebate of duty paid by the appellant for the period of closure of factory. In consequent to that, the appellant filed a rebate claim for the period 19.1.2010 to 3.12.2010 before Asstt. Commissioner on 13.12.2010. The said rebate claim was rejected on 29.4.2011 on the ground that the period of closure falling in two months, their refund claim cannot be sanctioned. The said order has not been challenged by the appellant. Thereafter another rebate claim was filed by the appellant on 10.5.2011 for the period 19.11.2010 to 5.1.2011. The said claim was also rejected on 7.3.2012 on the ground that rebate claim for the period 19.11.2010 to 3.12.2010 has already been rejected. Further no duty was paid by the appellant during the period December, 2010 and for the period 1.1.2011 to 5.1.2011 abatement claim has already been disposed of. The said order was not challenged by the appellant. Thereafter another rebate claim was filed on 20.8.2012 for the period 19.11.2010 to 30.11.2010. The said rebate claim was also rejected by the Asstt. Commissioner on the ground that the claim for the said period has already been rejected on 29.4.2011 and no appeal has been filed against the said order. Further, the claim has been filed after one year, therefore same is barred by limitation. Aggrieved from the said order, appellant is before me.

3. Learned Counsel for the appellant submits that initially the appellant filed the rebate claim for the said period but same was rejected but the period involved in the earlier claim is technically different as claim filed for the period of 19.11.2010 to 30.11.2010, therefore it is a separate claim and same is to be entertained separately. On the issue of time bar, he submits that the appellant was not required to pay duty for the impugned period which he has paid, the provisions of Section 11 B of CEA which is not applicable. Consequently, provision of 11B are also not applicable and rebate claim is not barred by limitation. To support this contention, he relied on the decision of Honble Punjab and Haryana High Court in the case of Kay Fragrance Ltd. [2014 (305) ELT 109 (P&H)], CCE vs. KVR Construction [2012 (26) STR 195 (Kar)] and Shravan Banarasilal Jejani vs. CCE, Nagpur [2014 (35) STR 587 (Tri-Mum)].

4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that vide impugned order rejected the claim which has already been rejected by the order of Assistant Commissioner dated 29.4.11 and same has not been challenged by the appellant before higher forum, therefore same has attained finality. Therefore, for the said period appellant cannot file rebate claim again. Therefore rebate claim has been rightly rejected by the lower authorities.

5. Heard the parties. Considered the submissions.

6. It is admitted fact that initially the rebate claim was filed by the appellant for the period 19.11.2010 to 30.11.2010 on 30.12.2010 and same has been rejected by the Assistant Commissioner on 29.4.2011. The said order has not been challenged by the appellant therefore same has attained finality. The contention of the learned Counsel that the claim for the period 19.11.2010 to 30.11.2011 is technically different is not acceptable as this period has been covered by the earlier application of rebate claim dated 30.12.2010. and claim against such period has already been rejected. Therefore, appellant cannot file rebate claim again for the said period. In these circumstances, I hold that the lower authorities have rightly rejected the rebate claim of the appellant. Therefore, I do not find any infirmity in the said order. Accordingly, same is upheld. Appeal filed by the appellant is dismissed.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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