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TMI Blog2017 (11) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... id on the insistence of the Revenue and the matter is successfully contested in higher judicial forum it has to be considered that the assessee has deposited the amount under protest. Appeal dismissed - decided against Revenue. - E/53178/2016-[EX]SM - A/57593/2017-SM[BR] - Dated:- 3-11-2017 - Mr. M.V. Ravindran, Member (Judicial) Ms. Kannu Verma Kumar, AR - for the appellant Shri V.R. Sethi, Advocate - for the respondent ORDER Per: M.V. Ravindran 1. This appeal is filed by the revenue against impugned order No.200/2016 dated 26.08.2016. 2. Heard both sides and perused the records. 3. The brief facts, after filtering out unnecessary details are the appellant herein was issued the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, the appellants filed refund claim with the authorities. The Adjudicating Authority rejected the refund claim on the ground that the duty liability is held against the appellant. The First Appellate Authority set aside the said order of the Adjudicating Authority rejecting the refund claim and allowed the appellant herein. M/s Praveen Tobacco Company Ltd. 4. Ld. Departmental representative submit that the refund is not due as on merits, the duty liability has to be discharged by the appellant and therefore, even if the demand is set aside on limitation, deposited amount cannot be treated as voluntary. She drew my attention to the decision of the Tribunal in the case of Hyderabad Iron Steel Works Ltd. V/s Collector of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction . Thus, the claim was required to be filed within one year of the relevant date i.e. the date of the order of Commissioner (Appeals) consequent to which the refund had become due. But the appellants filed refund claim after almost 3 years of relevant date. Since the entire issue of demand was held in favour of the appellants only on the ground of limitation, it was incumbent upon the appellants to file the refund claim in time. Since the refund claim was found to be hit by limitation since this ground was not taken at the adjudication stage while rejecting the refund claim, a show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) ELT 500 (SC)] in this regard and have submitted that department itself asked them to file refund claim only after the matter got settled in the High Court. That being so, going by the decision on the issue of new ground to be taken at the appellate stage, I find that the issue of limitation or time bar for refund claim having not been taken up in the show cause notice or in adjudication order, it can t be added at this stage. Hence, the issue of time bar can t be raised here. The issue of rejecting claim on the ground remains for rejecting the refund claim of the appellants. 6. I concur with the above findings of the First Appellate Authority and find no reason to interfere in such a reasoned order. 7. As regards the decision r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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