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TMI Blog2017 (1) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... refund on limitation, I find that appellant his admittedly paid the duty 'under protest' and it is not appellant who delayed the filing the refund but it is department who delayed in deciding the issue raised by the appellant - In my considered view, even the appellant was not required to file any refund claim, they could have taken the credit after issue on merit was settled in various judgments including case of Ashok Iron And Steel Ltd [2002 (1) TMI 91 - CEGAT, NEW DELHI]. Therefore there is absolutely no case that refund being time bar. The appellant is legally entitle for the refund alongwith consequential interest - appeal allowed - decided in favor of appellant. - E/1226/07 - A/94343/16/SMB - Dated:- 8-12-2016 - Mr. Ramesh Nair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, no response was received from the department, appellant filed refund claim on 19-7-2005. The adjudicating authority vide order-in-Original dated 12-1-2006 rejected the claim. Aggrieved by the said order, the appellant filed appeal before the Commissioner(Appeals), who set aside the Order-in-Original and remanded the matter to the Adjudicating authority vide OIA dated 12-7-2006. The adjudicating authority in the remand proceedings once against rejected the refund vide Order-in-Original dated 29-1-2007 placing reliance on the decision of the Tribunal in case of M/s. Albert David Ltd Vs. Commissioner [2003(157) ELT A-81(SC)]. Being aggrieved by order-in-original dated 29-1-2007 appellant filed appeal before the Commissioner(Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the claim was filed after five years of the payment of duty. In this regard he submits that the refund is not time bar for the reason that duty payment was made under protest, thereafter appellant has made chain of correspondence, therefore limitation does not apply. 3. Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that since the refund is clearly time bar as the same was filed after five years. On merit also the amount reversed by the appellant is correct held in the following judgments: (a) Uni deritend Ltd Vs. Commissioner of Central Excise, Nagpur[2004(166) ELT 252(Tri. Mumbai)] (b) Vijal Marine Services Vs. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be taken as a proceedings. Subsequently in following case the judgment of Albert David was departed/ distinguished and disapproved in the Larger Bench decision in case of Ashok Steel and Iron Ltd: (a) Commissioner of Central Excise, Raipur Versus S.B.A. Industrial Corpn. 2009 (246) E.L.T. 379 (Tri. - Del.)- Departed. (b) Commissioner of C. Ex., Tirupati Versus Suvera Processed Foods Pvt. Ltd. 2015 (315) E.L.T. 517 (A.P.)] Distinguished. (c) Tractor and Farm Equipment Ltd. Versus Commr. of C. Ex., Madurai-II[2015 (320) E.L.T. 357 (Mad.)] Disapproved. As per the above settled legal position the decision of the Albert David(supra) does not remain good law therefore the same is not applicable in this position. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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