2021 (5) TMI 281 - AT - Central Excise

Refund of CENVAT Credit - amount was paid under protest - denial of refund on the ground of time limitation - Applicability of time limit prescribed for one year - HELD THAT - The said issue has been examined by this Tribunal in the case of HUTCHISOM MAX TELECOM PVT. LTD. VERSUS COMMISSIONER OF C. EX., MUMBAI 2004 (1) TMI 114 - CESTAT, NEW DELHI where on identical issue, it was held that the refund of the duty paid by the Appellants cannot be denied to them on the ground of claim being time barred. Further in the case of M/S. TAMILNADU EX-SERVICEMEN S CORPORATION LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE, CHENNAI 2019 (12) TMI 185 - CESTAT CHENNAI it was held that even when Service Tax was paid under mistake of law, the period of limitation cannot be invoked to deny the refund. Thus, the contesting the reversal of cenvat credit by the appellant shall amounts to reversal under protest as per the various judicial decisions discussed - the refund claim filed by the appellant is not barred by limitation prescribed under Section 11B(1) of the Central Excise Act, 1944 - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim denied as time-barred - Contesting reversal of cenvet credit under protest - Applicability of one-year time limit - Judicial decisions on reversal under protest - Dispute over protest letter submission - Interpretation of protest under relevant case laws - Applicability of limitation period under Section 11B(1) of Central Excise Act, 1944.

Analysis:
The appellant contested the denial of a refund claim amounting to ?48,182/- as time-barred due to the reversal of cenvet credit. The appellant reversed the credit during an audit objection, later claiming it was done under protest. The key issue was whether contesting the reversal constituted a protest, exempting it from the one-year time limit. The appellant cited judicial decisions like ITEL Industries Ltd. and Kisan Cooperative Sugar Factory Ltd. to support their argument.

The appellant's counsel argued that the reversal was under protest as they contested it, relying on decisions like Hutchison Max Telecom Pvt. Ltd. and TamilNadu Ex-Servicemen's Corporation Ltd. The authorized representative countered, citing Mafatlal Industries Ltd. and other cases to support the time limit's applicability. The dispute centered on the absence of a formal protest letter and the impact on the reversal's status.

After hearing both sides, the Tribunal examined whether contesting the reversal amounted to a protest. Citing precedents like Hutchison Max Telecom Pvt. Ltd. and Tamilnadu Ex-servicemen's Corpn. Ltd., the Tribunal concluded that filing an appeal itself indicated a payment under protest. The Tribunal also referenced Bayshore Glass Trading Pvt. Ltd. to emphasize the significance of challenging assessments in such cases.

The Tribunal distinguished the cases cited by the authorized representative, emphasizing the specific issue of contested duty payment under protest. Ultimately, the Tribunal held that contesting the reversal under protest exempted the refund claim from the limitation period under Section 11B(1) of the Central Excise Act, 1944. Consequently, the impugned order was set aside, and the appeal was allowed with any necessary relief.

In summary, the judgment clarified the concept of contesting a duty reversal under protest, drawing on relevant case laws to support the appellant's position. The decision highlighted the importance of challenging assessments and the impact on refund claims' limitation periods under the Central Excise Act, 1944.