2016 (8) TMI 1109 - AT - Central Excise

Refund claim - period of limitation - duty paid under protest - appellant stated that the credit on certain services are at the moment under judicial scrutiny and keeping in mind the instructions of the Revenue they had reversed the credit - Revenue argued that letter of protest has been written to Superintendent of Customs and not to Superintendent of Excise - Held that - I find that the letters dated 26/03/2008 and 03/07/2009 were addressed to the Superintendent of Excise & Customs and to the Commissioner of Central Excise, respectively. I find that the letters are in the nature of protest though the word protest has not been mentioned in the said letters. In these circumstances, I hold that reversal has made protest and the limitation clause cannot be invoked against the appellant. - Decided in favour of appellant

Summary

Issues:
Refund claim rejection on the ground of limitation.

Analysis:
The appellant, M/s.Brintons Carpets Asia Pvt. Ltd., filed a refund claim arising from a dispute with the Revenue regarding the admissibility of certain credit. The original adjudicating authority held a large part of the credit to be admissible, leading to the appellant filing a refund claim for the admissible amount. However, the claim was rejected by lower authorities citing limitation as the reason.

The appellant argued that they had paid duty under protest, as evidenced by letters dated 26/03/2008 and 03/07/2009, where they indicated that they would seek a refund of the credit and interest paid once the judicial decision on credit availability was made. The appellant contended that the benefit of explanation to Section 11B of the Act should apply to them, as the issue was settled by the original adjudicating authority, which the appellant believed was covered in the said explanation.

On the other hand, the learned AR argued that the letter of protest was addressed to the Superintendent of Customs, not the Superintendent of Excise, and relied on the impugned order to support the rejection of the refund claim.

Upon review of the submissions, the Tribunal noted that the letters were addressed to the Superintendent of Excise & Customs and the Commissioner of Central Excise, indicating a nature of protest even though the word "protest" was not explicitly used. Consequently, the Tribunal held that the reversal made by the appellant constituted a protest, and the limitation clause could not be invoked against the appellant. As a result, the appeal was allowed, and the refund claim rejection on the ground of limitation was overturned.

This judgment highlights the importance of establishing a protest against duty payment under dispute and the application of relevant legal provisions to support refund claims in cases where duty was paid under protest pending a judicial decision on credit availability.