2008 (11) TMI 212 - AT - Central Excise

Payment under protest refund period of limitation Held that - that when the duty has been paid under protest, the period of limitation would be start to run from the date of the final decision in the assessee s own case - Even if the payment of duty prior to adjudication order passed by the Additional Commissioner is treated as payment under protest, the protest cases to exist once the Additional Commissioner s order was set aside and the issue was decided by the CCE (Appeals) in assessee s favour on 26-3-04 - the relevant date for computing the period of one year would be the date of CCE (Appeals) s order i.e. 26-3-04 and since the refund claim had been filed for beyond the period of one year from this date, the same is time-barred refund rejected.

Summary

Issues:
1. Central Excise Duty evasion and penalty imposition.
2. Appeal against rejection of refund claim based on limitation period under Section 11B.

Analysis:
1. The case involved the respondent manufacturing marble slabs without paying Central Excise Duty, leading to a duty evasion case against them. The Additional Commissioner confirmed the duty demand, interest, and penalty under Section 11AC. However, the Commissioner (Appeal) later held, following a Supreme Court judgment, that the activity was not excisable, and marble slabs were not chargeable for excise duty. Subsequently, the respondent filed a refund claim, which was rejected as time-barred by the Deputy Commissioner, citing the limitation period under Section 11B. The Commissioner (Appeal) allowed the appeal, stating that the limitation was not applicable. This decision was challenged in the appeal of the revenue.

2. The departmental representative argued that the limitation period for filing the refund claim should be calculated from the date of the order-in-appeal in the respondent's favor. Citing a Supreme Court judgment, it was contended that the limitation would start from the final decision in the Assessee's own case. The respondent's counsel, on the other hand, asserted that since the duty was paid under protest, the limitation period would not apply. Referring to another Supreme Court observation, it was argued that the limitation provisions would not be applicable in cases ending in court judgments. The Tribunal, after considering the submissions, disagreed with the respondent's contention. It held that the limitation period would start from the date of the final decision by the CCE (Appeals) in the respondent's favor. As the refund claim was filed beyond the one-year limitation period from that date, it was deemed time-barred. Consequently, the impugned order allowing the appeal was set aside, and the Revenue's appeal was allowed.