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TMI Blog2010 (12) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B of the Central Excise Act provides complete machinery for claiming refund of an amount of Central Excise duty on this ground. The provision clearly states that any such claim should be filed within a period of one year from the relevant date. It is not in dispute that the payment was made by way of debit in CENVAT account. Therefore, it is not open to the respondent to argue that what they paid on 24/07/2006 was not an amount of duty / education cess but a mere deposit. - E/1004/09 - A/53/2011-WZB/C-IV/SMB - Dated:- 21-12-2010 - Mr. P.G. Chacko, Shri.V.K. Singh, SDR for appellant Shri.Punit Gupta , CA , for respondent 1. In this appeal filed by the department, the issue relates to a refund claim filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain amount of differential duty on the DTA clearance made during the month of July 2006. This show-cause notice worked out the differential amount of duty in the same way the assessee had originally quantified the duty on DTA sales for the period01/11/2005to26/04/2006. From the show-cause notice, it appeared to the respondent that their quantification of duty on DTA clearance for the period01/11/2005to26/04/2006was correct and that the payment subsequently made from CENVAT account on24/07/2006was erroneous. On this basis, the respondent filed a refund claim on 16/08/2007 for an amount of Rs.2,73,621/- being the total amount of BED and Education Cess paid from CENVAT account on 24/07/2006 and also for interest thereon amounting to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, the learned Consultant for the respondent has argued in support of the appellate Commissioners order. He submits that the amount paid from CENVAT account on24/07/2006at the instance of the department should be considered to have been paid under protest inasmuch as the department subsequently changed their stand as evidenced by the show-cause notice dated02/08/2007. Alternatively, it is submitted that the amount is liable to be treated as a deposit rather than as an amount of duty. In either situation, refund of the amount could be claimed without time-bar. Reliance is placed on CC (Airport) Chennai Vs. Atlas Granites 2004 (173) ELT 25 (Tri.Chennai) wherein it was found that the party had paid duty with interest thereon pursuant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The payment dated24/07/2006made by the respondent in the present case was not one made in like circumstances. The circumstances of this case are peculiar. The assessee (respondent) had paid duty of excise on their DTA sales during01/11/2005to26/04/2006after quantifying the amount in terms of the proviso to Sction 3 (1) of the Central Excise Act read with the relevant notification. The Central Excise Range Superintendent pointed out a mistake of calculation and asked the party to pay the differential amount of duty and Education Cess. The Superintendent also suggested the formula for calculation of the duty and advised the party to pay the appropriate duty on DTA sales in future on the basis of such formula. The respondent (assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty paid on24/07/2006should be considered to be a payment under protest. It is quite obvious that the payment was made as required by the Range Superintendent in a letter dated17/01/2006. The Superintendents letter specified a formula and called upon the party to quantify duty on the basis of such formula in respect of DTA sales. It also called upon them to pay differential duty with interest for the DTA clearance of the period of dispute. This letter of the Superintendent was in the nature of a demand notice founded on a specific ground (formula for quantification of duty under the proviso to Section 3 (1) of the Central Excise Act read with the relevant notification) and the same was appealable under Section 35 of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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