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2022 (11) TMI 335 - AT - Central ExciseRefund of excise duty - amount was paid under protest - Time Limitation - HELD THAT - The larger bench of tribunal in the case of INDIA CEMENTS LIMITED 1984 (7) TMI 361 - CEGAT NEW DELHI where it was held that the result of the proposition that limitation does not extinguish the right but only bars the remedy would be that the Respondent, in this case, had a right to recover the amount by recourse to any other legal course open to him but not by recourse to Central Excise Rule 10 since limitation had, as on the date of invoking the right to demand the amount by recourse to that rule, extinguished that remedial right. It is also a fact that duty was paid under protest in case of INDIA CEMENTS LIMITED which is also true in the instant case and therefore, the arguments made by the learned counsel to distinguish the decision of tribunal in the case of INDIA CEMENTS LIMITED is not correct - Relying on the decision of larger bench in case of INDIA CEMENTS LIMITED, it is found that the appellants are not entitled to refund of the duty paid. Appeal dismissed.
Issues:
- Denial of refund of excise duty based on the decision of a larger bench of tribunal in the case of INDIA CEMENTS LIMITED. - Applicability of the decision of the larger bench of tribunal in the present case. - Challenge of the demand on both limitation and merits. - Distinction between challenging demand on merits and limitation. Analysis: The appeal before the Appellate Tribunal CESTAT AHMEDABAD was filed by M/s. Bilag Industries Pvt. Ltd. against the denial of refund of excise duty. The counsel for the appellant argued that the refund claim was rejected by lower authorities based on the decision of a larger bench of tribunal in the case of INDIA CEMENTS LIMITED. The counsel contended that the INDIA CEMENTS LIMITED decision was not applicable to the present case as the appellant had challenged the demand on both limitation and merits, unlike the situation in the cited case where the challenge was solely on limitation. The appellant had paid the duty under protest during the investigation, similar to the circumstances in the INDIA CEMENTS LIMITED case. The counsel emphasized that the department should not deny the right to a refund solely based on the demand not being set aside on merit but only on limitation. The learned Advocate for the appellant pointed out that the decision of the tribunal in the case of INDIA CEMENTS LIMITED was being misapplied to the present case by the lower authorities. The tribunal noted that in the INDIA CEMENTS LIMITED case, the appellant had challenged the demand on merits as well, contrary to the lower authorities' understanding. The tribunal highlighted that the duty was paid under protest in both cases, indicating a similarity in circumstances. Relying on the larger bench decision in the INDIA CEMENTS LIMITED case, the tribunal concluded that the appellant was not entitled to a refund of the duty paid. The tribunal emphasized that the limitation did not extinguish the substantive right but only barred the remedy, allowing the right to be enforced through other legal avenues. The Appellate Tribunal considered the arguments presented by both parties and reviewed the decision of the larger bench of tribunal in the case of INDIA CEMENTS LIMITED. The tribunal found that the appellant's challenge on both limitation and merits did not warrant a refund of the duty paid under protest. Consequently, the appeal was dismissed, affirming the denial of the refund claim. The judgment was pronounced in open court on 02.11.2022 by the members of the tribunal, Mr. Ramesh Nair and Mr. Raju.
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