9911796707
TMI Blog1997 (4) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... However when they received the re-warehousing certificate they filed the refund claim in respect of the goods for which re-warehousing certificate was received. The Assistant Collector rejected the refund claim amounting to Rs. 1,19,460.00 under Section 11B of the C.E. Act, 1944 as it was beyond six months and sanctioned the refund claim of Rs. 28,567/- as it was within six months from the date of paying the duty. Against this order the Appellants filed an appeal before the ld. Collector (Appeals) who upheld the decision of the Assistant Collector and hence the appeal before us. 2. Shri K.K. Anand the ld. Counsel submitted that it was not a simple matter of refund of duty governed by Section 11B inasmuch as it was a case of movement of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that the limitation of six months shall not apply where any duty has been paid under protest . Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty under Chapter X procedure therefore the payment of duty should be treated as provisional and the refund rejected by the lower authorities may be paid and the appeal may be allowed. 4. Shri Satnam Singh, the Ld. SDR submits that the Apex Court in the case of Assistant Collector v. Anam Electrical Manufacturing Company reported in 1997 (90) E.L.T. 260 held that so far as refund of duty is concerned it will be governed by the specific provision of Section 11B. The Ld. D.R. submitted that in the instant case duty was not paid under protest nor was the clearance of the goods under provisional assessment. Therefore, the time limit of six months shall be applicable to the refund claims in the instant case and since the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11B along with the definition of the relevant date, there is no room for any apprehension of the kind expressed by the Ld. Counsel . Here the duty was paid without any protest and the refund claim was filed beyond six months from the date of payment of duty. No dispute arose because of payment of duty because the assessee did not filed any appeal within 3 months from the date of payment of duty and therefore payment of duty was not a result of any dispute. The dispute arose only when the refund claim was rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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