9911796707
TMI Blog2000 (12) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ted are as under : 3. The respondents are engaged in the manufacture of tyres and tubes. A demand of Rs. 3,94,000/- was confirmed against them by the Assistant Commissioner, besides the imposition of penalty of Rs. 5,000/-, vide order-in-original dated 17-3-1997 for having availed the Modvat credit illegally. However, in appeal against that order by the respondents, the Commissioner (Appeals) allowed them credit of Rs. 2,97,350/- and disallowed credit of only Rs. 96,650/- and also reduced the penalty amount of Rs. 5,000/- to Rs. 4000/- vide order dated 31-3-1998. The respondents deposited Rs. 96,650/- vide debit entry No. 55, dated 16-4-1998 in RG 23A Part II. They also deposited penalty amount of Rs. 4,000/-vide TR 6, dated 18-4-1998. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do so. It has been mentioned in grounds of appeal that as per provisions of Section 11B of the Act, refund claim was required to be filed within six months from the date of payment and that this period of limitation was not applicable only in those cases where the duty was paid by the assessee under protest or under the order of the Court/Tribunal. The Revenue has reproduced paras 83 and 85 of the judgment of the Apex Court in Mafatlal Industries case (supra) in the grounds of appeal. Those paras read as under : 83. Where a person proposes to contest his duty liability by way of appeal revision or in the higher Court, he would naturally pay the duty, whenever he does, under protest . 85. Any person paying the duty, under protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debit entry of Rs. 96,650/- and deposit of the penalty amount of Rs. 4,000/- by the respondents was not voluntary but under the order of the Commissioner (Appeals), before whom they challenged the order of the Asstt. Commissioner. They even did not accept the order of the Commissioner (Appeals) and challenged the same before the Tribunal. On acceptance of the appeal by the Tribunal on 18-12-1998 the respondents became legally entitled to credit back the amount of Rs. 96,650/- in the RG 23A Part II wherein they made the debit entry not voluntarily, but under the order of the Commissioner (Appeals). They also became entitled to the refund of penalty amount of Rs. 4,000/- as the same was deposited by them under the orders of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Mafatlal Industries case (supra) it can be concluded without any hesitation that the debit entry of Rs. 96,650/- in the RG-23A Part II was made and penalty amount of Rs. 4,000/- was deposited by the respondents, under protest under the order of Commissioner (Appeals) as they proposed to contest the order of the Commissioner (Appeals) under which they were required to make the debit entry and pay the panalty amount in question. Therefore, the bar of limitation under Section 11B of the Act could not be invoked against them when they filed their claim for refund of Modvat and penalty amount. They applied for the refund on 9-2-1999 within less than two months of passing of order by the Tribunal on 18-12-1999. Therefore the impugned order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
