Brief facts of the case:
The appellant had paid excise duty during the period between 22.2.1999 and 28.8.1999. The amounts were deposited towards excise duty payable in response to the findings in the audit report. The assessee/appellant applied for refund of the amount deposited in 1999 aggregating to Rs.4,12,590/-. The applicant had not passed on the incidence of duty to the buyer; therefore, the provisions of unjust enrichment given in Section 11B of Central Excise Act, 1944 would also not be applicable in this case. In view of the above, adjudicating authority passed refund claim of Rs.4,12,590/-.
The Revenue, claimed to be aggrieved, applied for review before the Commissioner of the above order, and vide order dated 2.12.2005, the Commissioner directed the Assistant Commissioner to prefer an appeal before the Commissioner (Appeals) against the refund order. Commissioner (Appeals) decided the case in the favour of revenue. Aggrieved by the order of Commissioner (Appeals), assessee preferred an appeal before CESTAT, it also dismissed the appeal of the assessee by holding that the duty deposited by the assessee was voluntary and not in protest, therefore, the limitation period u/s 11B would apply.
Aggrieved by the order of CESTAT, assessee preferred an appeal before the Delhi Hon’ble High Court.
Contention of the Assessee:
The learned counsel for the assessee contended that duty was paid as a consequence of directions of the concerned officials and, therefore, were not voluntary and under protest. He relied upon the second proviso of Section 11B of the Central Excise Act which provides that limitation period for filing the refund application would not apply where the duty is paid under protest.
Contention of the Revenue:
The learned counsel for the revenue contended that the letter submitted by the assessee with the payment of duty nowhere indicated that the assessee paid the duty pursuant to any directions or to any action of a coercive nature. The letter of the assessee ended with “Thanking you, and assuring of our best service always”, which clearly indicate that the payment of duty was made voluntarily. Therefore, it is incorrect to say that the deposit of the above sum of Rs.4,12,590/- was only against the direction of the Department. As such the payment was voluntarily and therefore, hit by the limitation period prescribed u/s 11B.
Decision of the Hon’ble High Court:
The High court after considering the rival submissions observed that the point of dispute is that whether the appellant deposited duty voluntarily or under protest. Such question is clearly a question of facts and no question of law arises in that. The appellant is urging this Court to dwell deep into the factual material and render findings of fact of which the jurisdiction of this Court does not permit such an inquiry as the high court cannot entertain an appeal which involves only factual issue.
Thus, High court dismissed the appeal without going into the merits of the case.