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TMI Blog2015 (3) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT. The assessee/appellant’s attempt to have that order rectified in miscellaneous proceedings too was unsuccessful, as is evident from the further order dated 4.8.2010 of the CESTAT. In these circumstances, this Court is of the opinion that in fact no question of law arises in the facts of this case. - Decided against assessee. - CEAC 22/2010 - - - Dated:- 4-3-2015 - S. Ravindra Bhat And R. K. Gauba,JJ. For the Appellant : Mr. Rajesh Mahna with Mr.ManuGiri, Advocates. For the Respondent : Mr. Satish Kumar, Advocate. ORDER S. Ravindra Bhat, J. (Open Court) 1. The following substantial question of law was framed for the purpose of this appeal: - Whether Customs, Excise and Service Tax Appellate Tribunal was right in holding that the refund claimed by the appellant was governed by provisions of Section 11B of the Central Excise Act, 1944 and was barred by limitation? 2. The facts briefly are that the appellant had paid excise duty during the period between 22.2.1999 and 28.8.1999. The amounts were deposited towards excise duty payable. The adjudication order for the relevant period was made on 23.6.2004 pursuant to a show cause notice. Thereafter, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overruled by the Commissioner (Appeals): - 11.1 The Respondent has contended that in the Show cause notice dated 27.09.2001 it has been clearly acknowledged that the they had deposited the sum of ₹ 4,12,590/- on the direction of the audit objections. I have examined this plea of the Respondent and find it to be factually incorrect. It is observed that contrary to the plea of the Respondent, there was no direction issued. In fact the show cause notice issued to the Respondent mentions with specific reference to the audit objection itself as follows. Accordingly the party voluntarily paid ₹ 96,256/- [Emphasis supplied] .Thus, it is clear that the payment made by the Respondent was voluntary. The copy of letter dated 13.07.2001 relied upon by the Respondent [and referred to during personal hearing and filed by the Respondent alongwith the Memorandum of cross-objections] simply mentions the subject as Supply of figures of amount of Freight and Insurance Charges. Nowhere does this letter contain any indication of payment having been made pursuant to any directions or to any action of a coercive nature. The letter of the Respondent ends with Thanking you, and assuring o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) substituted by that Act : Provided further that the limitation of six months year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) ―relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air,the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factor ..... 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