2004 (96) ECC 549 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Bangalore

Dr. S.L. Peeran, Member (J)

Commissioner of Central Excise, Belgaum

Versus

Shah & Merwade Packings (P) Ltd.

Appeal No. E/792/03

[Arising out of Order-in-Appeal No. 149/2003-CE, dated 22.5.2003 passed by the Commissioner of Central Excise (Appeals), Mangalore]

Final Order No. 1484/2004, dated 15.9.2004, Certified on 17.9.2004

Refund

Limitation -- Commissioner has given a detailed order on all the issues. He also clearly noted that part of the claim was within time and only an amount of Rs. 4941 was time barred which he has not interfered -- Commissioner has examined the issue on time bar as well as on merits and has noticed that the excess duty paid by them was liable for refund -- Hence, refund maintainable.

PRESENT :

Shri R.V. Ramakrishnappa, JDR for the appellant.

Shri Ramesh Merwade, Rep. for the respondent.

Per : Dr. S.L. Peeran

The revenue is aggrieved with Order-in-Appeal No. 149/2003 CE dated 22.5.2003 by which the Commissioner (Appeals) has upheld the refund claim which he held to be within time. The assessee had claimed refund for the higher duty paid from 1.4.90 to 22.4.90 in respect of HDPE strips utilized for captive consumption. The assessee had claimed refund on the ground that the item was classifiable under Chapter 39 as held by the Apex Court in the case of M/s Raj Pack Well Ltd. which was a decision arising form Hon'ble Madhya Pradesh High Court. The refund was to an extent of Rs. 25,268, which was not hit by unjust enrichment and the claim was within time. The learned Commissioner has examined all the issues and has held that the refund is available to the assessee. He has not interfered with the Order-in-Original rejecting a part of the claim on time bar. The revenue contend that the demands were barred by time and on that plea learned JDR submits that Commissioner (Appeals) order is incorrect. The representative of the assesse is present and submits that the refund amount has already been paid to them. He submits that the claim was within time as rightly held by the Commissioner and therefore and order is correct.

2. On a careful consideration of the matter, I notice that the Commissioner has given a detailed order on all the issues. He also clearly noted that part of the claim was within time and only an amount of Rs. 4941 was time barred which he has not interfered.

3. On further consideration, I notice that the Commissioner has examined the issue on time bar as well as on merits and has noticed that the excess duty paid by them was liable for refund. I do not find any infirmity in the impugned order and as there is no merit in the appeal, the same is rejected.

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