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TMI Blog2009 (5) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1986. There was dispute about the exciseability of said polythene covers manufactured by M/s. Shivalik Agro Poly Plast Products Ltd. and the same was settled in favour of the assessee. Meanwhile, the duty demanded and penalty imposed were recovered by the department by adjusting from the refund sanctioned to the said Shivalik Agro Poly Plast Products Ltd. On appeal by M/s. Shivalik Agro Poly Plast Products Ltd., the Tribunal granted refund in respect of penalty recovered from them but, declined to order grant refund of duty recovered from them on the ground that burden of duty stood passed on to the purchaser i.e. appellant [CCE, Chandigarh v. Shivalik Agro Poly Products Ltd., reported in 2004 (173) E.L.T. 64 (Tri.-Del.)]. 4. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otest to the supplier about paying the duty amount. They were required to make payment of duty amount to their supplier in terms of Arbitration Award dated 15-3-89. The refund claim by Shivalik Agro Poly Products Ltd. had been rejected by the original authority on 3-2-96 and the rejection of refund claim was finally upheld by the Tribunal by order dated 29-7-2004. The payment was made by them to the supplier and the payment by the supplier to the Central Excise department should be treated as under protest. They, as a buyer, borne the burden of duty and claimed the refund in 1996 immediately after the claim by the purchaser was rejected and, therefore, the same should be held to be within the time limit prescribed under Section 11B. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mere recovery by way of adjusting a confirmed demand from refund due to the party cannot be treated as payment under protest by the party. In any event, whether payment was made under protest by Shivalik Agro Poly Products Ltd. was relevant in relation to the dispute between them and the Central Excise department which has already been settled in the two rounds of litigation. The appellant has entered the fray only in 1996 and it cannot be said that they have made the payment under protest. The protest, if any, made to the supplier can not be treated as protest to the Department. Further, when payment has been settled between the buyer and the seller, the question of protest also does not arise. Before the amendment in 1991, the claim shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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