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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 ..... ed 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 Rs. 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. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of the Appellate Authority whereas in the present case the order dt. 30.03.2009 is of original Adjudicating Authority. He further added that refund claim of the appellant is squarely covered under proviso to Section 11B(1) of the Act in view of the following judgments. - Cisco Systems India Pvt. Ltd. Vs. CCE & ST, New Delhi, 2016-TIOL-1233-CESTAT-DEL - Itel Industries Ltd. Vs. CCE, Calicut, 2014 (301) ELT 288 (Ker.) - CCE, Chennai Vs. Electro Steel Castings Ltd., 2014(299) ELT 305 (Mad.) - Indian Oil Corporation Ltd. Vs. CCE, New Delhi, 2010 (256) ELT 232 (P&H) - CCE, Gurgaon Vs. Alcatel Modi Network System Ltd, 2008 (221) ELT 358 (P&H) 5. The ld. AR reiterated the findings in the order of the Commissioner (Appeals) and relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. Both the decisions relied upon by Commissioner (Appeals) and learned AR are single member decisions. In the case of Redington India Ltd. (supra), the assessment decision was finalized by Appellate Authority, which is not the situation here. In the case of CCE, Jaipur-II Vs. Evershine Marbles & Exporters P. Ltd. (supra) relied upon by Revenue, the Tribunal held that once the case was adjudicated by the Additional Commissioner the protest ceased to exist. It relied upon the judgments of Hon'ble Supreme Court in the case of Dena Snuff Ltd. Vs. CCE, (supra) and Mafatlal Industries Ltd. Vs. UOI (supra). 7.3 In the case of Cisco Systems India Pvt. Ltd. Vs. CCE, New Delhi (supra), relied upon by the appellants, the Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny order passed by the higher appellate forum. Commissioner (Appeals) in his order dated 20.08.2007 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 limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id decision of the Hon'ble Supreme Court was considered by the Hon'ble Kerala High court in the case of Itel Industries Ltd. Vs. CCe, Calicut [ 2014 (301) ELT 288 (Ker)]= 2014-TIOL-366-HC-KERALA-CX wherein it was distinguished and law was declared to the effect that limitation of one year is not applicable in case assessee pays the duty under protest. The said decision was also distinguished by the Hon'ble Madras High Court in the case of CCE Vs. KVR construction -[2012 (26) STR 195 (Ker)] wherein it was held that once the amounts are paid under protest, the payment must be deemed to be under protest and no limitation is applicable in the light of second proviso to section 11B. The same ratio would apply to the refund claim made under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellate authority." Hon'ble Punjab and Haryana High Court also took the following view in the case of Indian Oil Corporation Ltd. Vs. CCE, New Delhi - (supra) which is as under:- "Refund - Limitation - Payment of duty made on HSD cleared to bonded warehouses - Refund application filed when pointed out by Assistant Commissioner - Application rejected as same filed beyond 6 months of date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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