2018 (8) TMI 783 - AT - Central Excise

Refund claim - duty paid under protest - time limitation - Held that - Every refund application has to pass through the bar of limitation in terms of the provisions of section 11B of the Central Excise Act. However, as per exceptions carved out in the said section, the limitation would not apply if the duty stands paid under protest or the assessments are provisional. The appellant have taken a categorical stand that the reversal was being done by them after lodging their protest vide letter dated 05.06.2009. If that be so, the limitation would not apply - However, neither of the authorities below have referred to and considered the said protest letter filed by the appellants. Matter remanded to the original adjudicating authority for re-consideration in the light of the protest filed by the assessee - appeal allowed by way of remand.

Summary

Issues:
1. Applicability of Rule 6(3) of Cenvat Credit Rules on sale of electricity.
2. Refund claim based on the Supreme Court decision.
3. Rejection of refund claim by the original adjudicating authority.
4. Appeal against rejection of refund claim on limitation grounds.
5. Consideration of protest letter for limitation exemption.

Analysis:
1. The appellant, engaged in sugar and molasses manufacturing, availed Cenvat credit but faced a demand to reverse credit due to selling electricity. The Hon’ble Supreme Court's decision clarified that Rule 6(3) doesn't apply to electricity sales, leading to the dropping of demand against the appellant.

2. Following the demand drop, the appellant filed a refund claim, which was partially allowed by the original adjudicating authority. However, a portion was rejected citing non-coverage by the previous Commissioner's order, leading to the appellant's appeal for the remaining refund amount.

3. The Commissioner (Appeals) upheld the non-applicability of Rule 6(3) to electricity sales but rejected the appeal on limitation grounds under Section 11B of the Central Excise Act, despite the appellant's protest payment stance. This rejection prompted the appellant to file the present appeal.

4. The appellant contended that the payments were made under protest as per Rule 6(3A) since 2009. The tribunal noted that limitations under Section 11B don't apply if payments were made under protest, but the lower authorities failed to consider the protest letter. Consequently, the tribunal remanded the matter for reconsideration based on the protest letter and observations made.

5. The tribunal allowed the appeal by remand, emphasizing the importance of considering the protest letter for exemption from limitations under Section 11B. The case highlights the significance of due consideration of protest filings in refund claims under the Central Excise Act.