Refund Filed Before The Wrong Forum Is Not Time-Barred, Duty Paid Under Protest Covers Duty Paid By Mistake- CESTAT Chennai

The Hon’ble CESTAT Chennai vide its order dated 09.05.2022 in the matter of M/s Hivelm Industries Vs. The Commissioner of G.S.T. and Central Excise in Excise Appeal No. 40606 of 2016, held that the refund filed by the Appellant before the wrong forum shows the bonafide on the part of Appellant.  Thus, the refund claim filed, is within limitation.

The Appellant preferred the Appeal assailing the order-in-Appeal dated 28.01.2016 passed by the Ld. Commissioner of Central Excise (Appeals – II) whereby the refund filed by the Appellant was rejected on the ground of limitation and the adjudication order was upheld.

Facts: –

  • The Appellant supplied isolators and spares to DVC Koderma Thermal Power Project State 1 (2×500 MW) (A deemed export project) owned by Damodar Valley Corporation (M/s DVC) through its main contractor M/s Bharat Heavy Electricals Ltd. (BHEL).
  • That the deemed exports were exempted for payment of duty vide Notification No. 06/2006 dated 01.03.2006. However, the appellant made the payment of tax as its name was not reflecting in the project certificate issued by M/s DVC.
  • That later on 13.12.2011, the appellant filed an application for refund before Directorate General of Foreign Trade (DGFT), which was rejected by DGFT and against the said rejection, an appeal was preferred before the DGFT.
  • The Appellant also filed the refund claim on 17.07.2014 before the Excise Authorities, and the same was rejected by the Adjudicating authority vide its order dated 11.09.2014 on the ground that the refund has been filed beyond the prescribed period of one year. On appeal being preferred against the said order, same was also dismissed vide impugned order -in-Appeal dated 28.01.2016 concurring with the findings of the adjudicating authority.

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