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TMI Blog2017 (4) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter 69 of the Central Excise Tariff. A dispute arose with Department on admissibility of Cenvat Credit availed by the appellant on Bolting cloth, Screens etc as capital goods. The appellant reversed credit of ₹ 63,27,506/- availed on such goods under protest on 21.08.2008. They provided the information of the reversal under protest to the Department vide their letter dt. 01.09.2008. The Department issued a show cause notice dt. 25.02.2009, which was dropped in adjudication by Ld. Commissioner vide Order-in-Original No. 10-11/Commr/CS/09/CE dt. 30.03.2009. 2. The appellants filed a refund claim on 28.06.2010 under Section 11AB of the Central Excise Act 1944 of ₹ 63,27,506/- in respect of credit which they had reversed under protest. They were issued show cause notice dt. 26.07.2010 by the Assistant Commissioner, which was adjudicated on 26.08.2010 and they were denied the refund claim on the ground of limitation under Section 11B ibid. 3. In appeal, the Ld. Commissioner (Appeals) upheld the order of the Adjudicating Authority, aggrieved by which the appellants are before this Tribunal. 4. The ld. Advocate for the appellants submits that it is not in dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit on Bolting cloth, Screens etc as capital goods. The appellants did not agree with this contention and reversed the Cenvat Credit of ₹ 63,27,506/- availed on such capital goods under protest on 21.08.2008, which was informed to the Department vide appellants letter dt. 01.09.2008. The show cause notice was decided by the Ld. Commissioner, who dropped the demand vide his order dt. 30.03.2009. The appellants filed the refund claim after more than one year on 28.06.2010. The refund claim has been rejected by the Department on the ground of limitation. The question to be decided therefore is whether the limitation would apply in these set of facts. We find that the proviso to Section 11B(1) reads as under:- 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. 7.2 The contention of the Revenue is that the protest got vacated on 30.03.2009 when the Ld. Commissioner passed the order and dropped the show cause notice dt. 25.02.2009. The Revenue argues that the one year period would start from that date and since the refund claim was filed after one year from that date, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simplicitor remanded the matter to the original adjudicating authority to pass a denovo order. As such, it cannot be clearly concluded that the refund has not arisen out of order in appeal and it is only after the denovo proceedings were finally concluded by the adjudicating authority vide his order dated 23.04.2009, that the appellant became entitled to the refund. 12. The legal question which arises is that when the duty was paid under protest whether the period of limitation as provided under section 27 would be applicable or not. We have already observed that the second proviso to section 27(1) is simplicitor to the effect that limitation will not be applicable where the duty has been paid under protest. The second proviso is neither extending the period nor limiting the same. As such, we agree with the learned Advocate that if the duty has been paid under protest and in the absence of any vacation of that protest by the authorities, the limitation period may not apply. 13. We also note the Revenue reliance on the Supreme Court decision in the case of M/s. Dena Snuff (P) Ltd. Vs. CCE, Chandigarh as reported in [2003 (157) ELT 500 (SC)] = 2003-TIOL-73-SC-CX and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such benefit is that if the case of applicant falls within the proviso giving rise to a benefit not to question limitation it has to be extended. In other words, no question of limitation would fall for consideration or deserves to be extended depending upon the conditional deposit when duty and interest payable if any made by the applicants. If no such liberty or protest is indicated at the time of payment of duty and interest, definitely such applicants are not entitled to claim such benefit provided under the second proviso to Section 11B. 9. In the present case computation of period of one year with reference to the relevant date is not an issue for adjudication as the very case of the appellant is such period of limitation, i.e. one year, is not applicable to his case as the duty was paid under protest. Since the duty paid by the applicant was subsequent to 20-9-1991, he is entitled to the benefit of second proviso to Section 11B, therefore the Tribunal was erroneous in setting aside the order of the first appellate authority which granted the benefit to the applicant. Accordingly, the appeals deserves to be allowed and allowed sustaining the order of the first appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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