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TMI Blog2021 (5) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... NNAI [ 2019 (12) TMI 185 - CESTAT CHENNAI] it was held that even when Service Tax was paid under mistake of law, the period of limitation cannot be invoked to deny the refund. Thus, the contesting the reversal of cenvat credit by the appellant shall amounts to reversal under protest as per the various judicial decisions discussed - the refund claim filed by the appellant is not barred by limitation prescribed under Section 11B(1) of the Central Excise Act, 1944 - appeal allowed - decided in favor of appellant. - Excise Appeal No. 61382 Of 2019 - A/60816/2021 - Dated:- 6-5-2021 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) Shri Vikrant Kackaria, Advocate for the Appellant Shri H. S. Brar, Authorised Representative for the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reversal, the same is to be treated as paid under protest and to support of this, he relied on the following decisions:- (i) Hutchison Max Telecom Pvt. Ltd. Vs. Commissioner of Central Excise, Mumbai 2004 (165) ELT 175 (Tri.-Del.) (ii) TamilNadu Ex-Servicemen s Corporation Ltd. Vs. Commissioner of Central Excise Chennai- 2020 (38) GSTL 98 (Tri.-Chennai) (iii) Bayshore Glass Trading Pvt. Ltd. Vs. Commissioner of Customs, Kolkata -2002 (148) ELT 1243 (Tri.-Kolkata). 5. On the other hand, the Ld. AR contested the submission made by the Ld. Counsel and submits that as it is admitted by the Ld. Counsel that no protest letter has been filed by them and the mere intimation of the reversal of cenvet credit that does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the said Notification. It is well settled law that filing of appeal is by itself is a protest. It is not the case of the Revenue that the Appellants had filed claim for refund of duty without challenging the assessment. This was the view expressed by the Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. We, therefore, hold that the refund of the duty paid by the Appellants cannot be denied to them on the ground of claim being time barred. The matter is, however, remanded to the Adjudicating Authority to consider whether the principle of unjust enrichment is applicable in the facts of the present matter after following the principle of natural justice. 8. Further, in the case of Tamilnadu Ex-servicemen s Corpn. Ltd. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be thrown out on the ground of limitation. The order of the Assistant Commissioner dated 8-11-2006 in having allowed the refund of ₹ 2,15,463/- under Section 11B of the Act was, therefore, perfectly in order and the order of the Tribunal in setting aside the order of the Commissioner dated 1-6-2007 cannot be called in question. Inasmuch as the above conclusions of the Tribunal were made based on relevant considerations of the claim of the respondent/assessee and were based mainly on facts relating to the first respondent-assessee, we do not find any question of law, much less substantial question of law to be entertained in this appeal. We, therefore, do not find any merits to entertain this appeal. The appeal fails and the same is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der that being aggrieved by the above escalation of value, the present Appeal has been filed with a request to accept the declared value with consequential relief to the Appellant. The ratio of the decision in Vikas Spinners is not applicable inasmuch as the assessable value was loaded with the consent of the Special Attorney of the Appellants who had even signed an affirmation accepting the loaded value of the goods on the back of the bill of entry. Moreover, after examination of the goods, were found to be mis declared and a show cause notice as issued to them for confiscation of goods and imposition of penalty, which was contested by the Appellants therein. Even in the said proceedings, the loading of value was not opposed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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