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TMI Blog2013 (12) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... e and ancillary issues. Accordingly, after rejecting the stay application, we proceed to deal with the appeal. 2. On the strength of Final Order No.1287/2009 dt. 23/10/2009 passed by this Bench in appeal No. E/896/2006 (ITEL Industries Ltd. Vs. CCE, Calicut), the respondent claimed refund of duty of Rs.7,40,651/- which had been paid under protest during the period from April 1998 to March 2000. The Final Order ibid, which was received by the party on 10/11/2009 had set aside the demand of duty to the above extent in respect of 'MTRs' for a period upto March 1998. The respondent purported to enjoy the benefit of this decision by filing the subject refund claim. In a show-cause notice dt. 26/11/2010, the Assistant Commissioner concerned prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute regarding the classification list had been settled by this Court. That was done as recently as on 28/08/2003. The application for refund by the appellant was therefore premature. We have noted the proviso to sub-section (1) of Section 11(B) which says that the period of limitation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which date will be the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Industries decision which has been relied upon by the Tribunal it would have to be from the final decision in the assessee's own case. 3. Aggrieved by the order of rejection of refund claim, the party preferred an appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner's order and restore the Order-in-Original. 5. The learned consultant for the respondent, at the outset, submits that the duty was paid, admittedly, under protest and, therefore, the time-bar provisions of Section 11B of the Act are not applicable by virtue of the second proviso to sub-section (1) which reads thus: "Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. It is submitted that the protest was never vacated and that it was subsisting at the time of filing of refund claim. Even if the protest is assumed to be inoperative or inef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of pronouncement of the aforesaid Final Order of this Tribunal. That order was pronounced on 23/10/2009. The refund claim filed by the respondent on 28/10/2010 is indisputably beyond one year from the date of pronouncement of the Final Order of this Tribunal. The statute does not provide for condonation of any delay, however marginal it may be. The law made by the Parliament is supreme and has to be given full effect to. Incidentally, the view taken by the Hon'ble Supreme Court in the case of Dena Snuff (P) Ltd. (supra) way back in September 2003 is in tandem with the law made by the Parliament in 2007. Following the letter and spirit of the relevant definition of 'relevant date' and that of the ruling of the apex court, we have to hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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