2015 (9) TMI 1536 - AT - Central Excise

Refund claim - payment of duty under protest - rejection on account of time limitation - the refund claim has been filed after one year from the date of the adjudication order - Held that - Sub-section (1) of Section 11B provides the time limit of one year from the relevant date for filing the refund application. In the 2nd Proviso contained therein, it has been provided that the limitation of one year shall not apply where any duty and interest has been paid under protest - the refund application filed on 27.12.2011 pursuant to the favourable adjudication order dated 01.02.2010 cannot be considered as barred by limitation of time and thus, the appellant should be entitled for refund of the amount in question paid under protest - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Rejection of refund claim on the ground of limitation.

Analysis:
The case involved appeals against the rejection of a refund claim by the Commissioner (Appeals-I), Central Excise, Jaipur, based on the ground of limitation. The appellant had reversed irregularly availed Cenvat credit upon detection by the audit wing of the Central Excise Department. The appellant filed a refund application after a favorable adjudication order dated 01.02.2010, seeking refund of the Cenvat credit allowed. However, the refund application was rejected by the Adjudicating Authority on 28.08.2012, citing that it was filed after one year from the date of the adjudication order, thus barred by limitation. The Commissioner (Appeals) upheld the rejection, leading to the appeal before the Tribunal.

2. Interpretation of Section 11B of the Central Excise Act, 1944.

The appellant argued that the time limit prescribed in sub-section (1) of Section 11B should not apply since the duty was paid under protest. On the other hand, the Revenue-Respondent contended that the refund claim should have been filed within one year from the date of the adjudication order allowing Cenvat credit, as per the explanation appended to Section 11B. The Tribunal analyzed Section 11B, noting that the 2nd Proviso exempts the limitation of one year where duty and interest are paid under protest. The explanation clarifies the term 'relevant date' for filing a refund application within one year under normal circumstances. Considering the payment of duty under protest, the Tribunal held that the limitation for filing the refund application does not apply in such cases.

Final Decision:
The Tribunal set aside the impugned order and allowed the appeal in favor of the appellant, granting them the refund of the amount paid under protest. The judgment emphasized the application of Section 11B and the exemption from limitation in cases where duty is paid under protest, ensuring the appellant's entitlement to the refund.