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TMI Blog2013 (8) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... te from which the period of limitation starts to run is from the date on which the assessee's own case finally decided by the Tribunal - Issue relating to period of limitation, uniformly held that no limitation was applicable to the payment made under protest - Payment made herein is also deemed to be under protest and no limitation is applicable and the claim is maintainable and is rightly decided by the CESTAT – Decided against the Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed an order on 17.10.1997, thereby the demands raised in the show cause notice for the period from March 1994 to September 1995 was confirmed. Aggrieved by the same, the assessee preferred an appeal before the Commissioner of Central Excise (Appeals). 3. The appeal preferred by the assessee before the Commissioner of Central Excise (Appeals) for the earlier period was disposed of on 30.7.1998, thereby setting aside the order of the Assessing Officer. On the strength of such order, the assessee preferred a refund claim for refund of the duty paid during the period from December 1994 to September 1995 and the same was ordered by the Assistant Commissioner vide letter dated 5.10.1999 on a sum of Rs.3,22,897/-. During the pendency of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Calcutta, duty paid during the pendency of appeal proceedings should be treated as "paid under protest" and the refund claim made for the subsequent period should be treated as in continuation of the earlier claim and hence the time limit as per Section 11 B was not attracted. The First Appellate Authority allowed the appeal by directing the lower authority to grant refund of duty, after verifying all other aspects. Aggrieved by this, the Revenue went on appeal before the Customs, Excise and Service Tax Appellate Tribunal. Applying the decision of the Apex court reported in 1997 (89) ELT 247, the Tribunal rejected the Revenue's appeal. Hence, the present appeal before this Court by the Revenue. 5. Thus, the determination of substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the present case in favour of the assessee, wherein also, the payment of duty was made only during the pendency of appeal against very levy of duty for the earlier period. 8. In other case reported in (2004) 13 SCC 113 (Dena Snuff (P) Ltd v. Commissioner of Central Excise, Chandigarh) relied on by the Revenue, the Supreme Court has in para 5 dealt with the issue relating to actual dispute involved herein, but the same relates to cause of action. In that case, the Hon'ble Supreme Court was called upon to decide starting date of period of limitation, whether it is from the date on which identical third party's case or the assessee's own case was finally decided by the Tribunal. In the case cited above, the payment was made under prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation, uniformly held that no limitation was applicable to the payment made under protest. The Hon'ble supreme Court in the earlier judgment clearly observed that the payment made, when the assessee has been challenging the earlier levy of duty, is deemed to be under protest and not otherwise. Hence, the combined appreciation of both the cases decided by the Supreme Court would lead to an irresistible inference that the payment made herein is also deemed to be under protest and no limitation is applicable and the claim is maintainable and is rightly decided by the CESTAT. 10. In the light of the above discussion, we find no justification to interfere with the order of the Customs, Excise and Service Tax Appellate Tribunal. The Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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