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TMI Blog2017 (7) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... r claiming the refund of any excess amount paid could be the date on which the appellant has debited the amount of 10% of the value of the exempted goods cleared from his factory which was 31.03.2009 and the refund claim has been filed with the office of the Assistant Commissioner, Central Excise on 27.06.2011. Provisions of Section 11B do not permit for filing the refund claim of any amount beyond the period of one year if the same are not paid "under protest". In the case in hand, appellant has not paid the amount for which refund claim has been preferred, “under protest”. On this ground itself, I find that the impugned order is correct and legal and does not suffer from any infirmity - appeal dismissed - decided against appellant. - E/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. Show-cause notice was issued for the rejection of refund claim filed by them. Appellants contested the issue before the adjudicating authority on merits. After following due process of law, the refund claim was rejected. Appellant appealed before the first appellate authority, who also rejected the appeal holding the finding of the adjudicating authority that the refund claim was filed beyond the period of limitation as mentioned in Section 11B of the Central Excise Act, 1944. 3. Learned counsel after giving overall picture of the issue involved submits that appellant, as a practice, debited amount of 10% of the value of the goods cleared by availing benefits of exemption notification. He would submit that during the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for refund of excess amount paid in terms of Rule 6(3)(b) of the CENVAT Credit Rules, 2004 is to be considered by applying the provisions of Section 11B of the Central Excise Act, 1944 and whether such refund claim is admissible. 6. It is noticed that appellant in their grounds of appeal have made elaborate submissions in support of their contentions that provisions of Section 11B of Central Excise Act are applicable to the subject claim. I notice that the first appellate authority in the impugned order in paragraph no.30 has categorically recorded that provisions of Section 1 1B are applicable to the subject case, which is not contested by the Revenue by filing an appeal or any cross-objection to the appeal filed. It is noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 and claim for refund was received in the office of the Asst. Commissioner of Central Excise, on 27.06.2011. However, the contention of the appellant in this regard is that the refund is within time as period of one year (limitation prescribed under Section 11B of CEA) should be reckoned from the date on which the escalation amount wrongly paid was debited back to the appellant by their client and the original authority erred in taking the date of payment of differential duty as relevant date. 16. I have gone through the relevant provisos of Section 11B of CEA, which defines relevant date for the purpose of limitation under Section 11B. On perusal of the said provisions, I find that the explanation (B) under Section 11B of CEA prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 clearly indicate as to what is relevant date . By applying the said meaning of relevant date , in the case in hand, the relevant date for claiming the refund of any excess amount paid could be the date on which the appellant has debited the amount of 10% of the value of the exempted goods cleared from his factory which was 31.03.2009 and the refund claim has been filed with the office of the Assistant Commissioner, Central Excise on 27.06.2011. Provisions of Section 11B do not permit for filing the refund claim of any amount beyond the period of one year if the same are not paid under protest . In the case in hand, appellant has not paid the amount for which refund claim has been preferred, under protest . On this ground itself, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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