2023 (10) TMI 726 - AT - Central Excise

Refund of Excise Duty paid under protest - refund is barred by time limitation or not - HELD THAT - The appellant had paid the duty on the behest of the audit objection which itself is a payment of duty under protest. Moreover, the appellant have also clearly mentioned in their TR-6 challan that the payment of duty is under protest. The appellant have also submitted a letter declaring that such payment of duty is under protest. In this position limitation provided under section 11B is not applicable for refunding the Excise Duty. Merely by filing the appeal, appellant s refund cannot be with held which has been clarified by the Central Board of Excise Customs in various circulars from time to time, that unless until stay is obtained from the Higher Court the refund cannot be kept pending. Therefore, on both the counts, the appellant is entitled for refund. Appeal allowed.

Summary

Issues involved: Whether the refund claim filed by the appellant is barred by limitation when the excise duty was paid under protest.

Summary:
The appellant collected an amount under other charges on warehouse goods without paying excise duty. After paying Rs. 93,36,942 under protest based on an audit objection, they filed a refund claim following a favorable CESTAT decision in another case. The refund claim was rejected by the Assistant Commissioner, citing a pending challenge by the department in the Supreme Court. The appellant filed an appeal before the Commissioner (Appeals) which was upheld, leading to the present appeal.

The appellant argued that the payment was made voluntarily but under protest at the department's insistence, making the limitation under section 11B inapplicable. They cited various judgments in support of their case, including a previous Tribunal order in their favor. The revenue representative reiterated the findings of the impugned order.

After considering the submissions and records, the Tribunal found that the duty payment was made under protest, as clearly indicated in the TR-6 challan and a submitted letter. The Tribunal held that the limitation under section 11B does not apply in such cases for refunding excise duty. Additionally, the Tribunal noted that the department's appeal to the Supreme Court does not automatically withhold the appellant's refund, as clarified in circulars by the Central Board of Excise Customs. Therefore, the Tribunal concluded that the appellant is entitled to the refund and set aside the impugned order, allowing the appeal.

(Separate Judgment delivered by the Judges: None mentioned)