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TMI Blog2015 (10) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... t recovery of this amount right from the day the same was recovered from them. However can this be considered a valid protest for the purpose of section 11 B. Tribunal in the case of Kota Oxygen Limited [2000 (9) TMI 163 - CEGAT, NEW DELHI] has ruled that the duty paid while contesting the said payment before appellate forum is to be considered as duty paid under protest. For this the tribunal relied on the decision of Hon ble Supreme Court in case of Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. There is no evidence that the delay or litigation was deliberate. In the instant case it is apparent that the appellants were contesting the liability right from the date of payment of duty before various forums. Thus it can be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e correctly classifiable under heading 74.03. The revenue clarified that they should immediately file a revised classification and also pay applicable Central Excise duty. The ordinance factory later on paid the Central Excise duty on the said material cleared to the appellants. 2. The ordinance factory recovered this amount of duty paid from the appellant in 1997 by adjustment against the future tenders during the period February 1997 to May 1997. The appellants opposed this demand and approached the arbitrator in May 1997. The ordinance factory refused to appoint the arbitrator and in November 1998 the appellants sent a notice to ordinance factory for recovery of the disputed amount. After certain correspondence in 1998 1999 in December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protesting from the day the duty was recovered from them. They had tried arbitration, filed suit in the court and even contested in the High Court. The protest was clear and apparent. The appellant relied on the decision of Tribunal in case of Kota oxygen Limited 2001(130)ELT889, the decision of Tribunal in case of Hutchinson Max Telecom 2004 (165) ELT 175 and the decision of Hon'ble Supreme Court in case of M.P. steel Corporation 2015 (319) ELT 373. 4. Learned AR reiterated the arguments made in the impugned order. 5. We have examining the arguments made by both parties. There are 2 issues that need to be decided: i) If the refund claim is barred by limitation or can it be considered that duty has been paid under protest. ii) If the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of decrees and orders that have become final but have not been executed, the non obstante clause, Section 11B(3), provides as follows : (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (Emphasis added) It is, therefore, clear that in respect of such decrees and orders, the procedure and conditions prescribed in Section 11B will have to be complied with. However, under the scheme of the amended Excise Act, the application for refund which is a pre-requisite for invoking Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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