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2021 (8) TMI 687 - AT - Central ExciseRefund claim of pre-deposit - applicability of time limitation - duty paid is under protest or not - adjust of refund with duty at the instance of department - whether the refund claim as was filed on 24.11.2017 is hit by the time limit prescribed under Section 11 B of Central Excise Act? - HELD THAT - The Section 11 B talks about the refund of duty and requires that application for refund of such duty has to be made within a period of one year from the relevant date. Relevant date has been defined in the Section itself under sub-clause 5 (B). Apparently and admittedly the refund claim has been filed post this dismissal of Revenue s appeal, on 24.11.2017. So seen from the angle of time bar issue as invoked by the Department, it is held that the period of one year as per section 11B (B) (ec) is the date of decision of Rajasthan High Court in COMMISSIONER, CENTRAL EXCISE SERVICE TAX-I, JAIPUR, RAJASTHAN VERSUS RAJDHANI CRAFTS 2017 (9) TMI 1942 - RAJASTHAN HIGH COURT and not the date of decision of Final Order of CESTAT, the appeal before High Court of Rajasthan being the one filed by the Department. Hence, the findings of authority below are absolutely wrong. Otherwise also, the another apparent fact is that the order dated 30.06.2014 of adjusting the paid amount towards the sanctioned demand was passed during the pendency of the assessee s appeal challenging the said demand before CESTAT and the demand stands set aside by CESTAT. Such act of the Department cannot be denied to be the coercive manner and since the payment was made pursuant to the direction of Departmental Authorities the same cannot be considered as voluntary payment and has to be treated as payment under protest. Section 11B proviso is clear enough to say that the limitation of one year shall not apply where any duty/interest on such duty has been paid under protest - the invoking of limitation issue is held to be absolutely unjustified on the part of authorities below. Appeal allowed - decided in favor of appellant.
Issues:
1. Time limit for filing refund claim under Section 11B of Central Excise Act, 1944. 2. Interpretation of relevant date for filing refund claim. 3. Consideration of payment under protest for limitation period. Analysis: Issue 1: Time limit for filing refund claim under Section 11B The appeal in question concerns the time limit for filing a refund claim under Section 11B of the Central Excise Act, 1944. The appellant filed a refund claim on 24.11.2017, seeking a refund of an amount, including a pre-deposit. The Department contended that the refund claim was time-barred as it was filed beyond the one-year period from the relevant date, as mandated by Section 11B. Issue 2: Interpretation of relevant date for filing refund claim The Tribunal analyzed the relevant dates in the case, noting that the demand of duty was set aside by the CESTAT on 10.05.2016. Subsequently, the Revenue's appeal was dismissed by the High Court on 06.09.2017. The Tribunal held that the relevant date for calculating the one-year period under Section 11B was the date of the High Court's decision, not the CESTAT's decision. Therefore, the refund claim filed on 24.11.2017 was within the statutory time limit. Issue 3: Consideration of payment under protest for limitation period The Tribunal also considered whether the payment made by the appellant could be deemed as a payment under protest, thereby exempting it from the one-year limitation period under Section 11B. It was argued that since the payment was made under protest, the limitation period should not apply. Relying on precedent, the Tribunal held that the payment made under coercive circumstances, as in this case, should be considered a payment under protest. Consequently, the limitation issue raised by the Department was deemed unjustified. In conclusion, the Tribunal set aside the order under challenge and allowed the appeal, emphasizing that the refund claim was filed within the prescribed time limit, considering the relevant date and the nature of the payment made by the appellant.
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