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TMI Blog2022 (5) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... e project in which it was involved was a deemed export. Moreover, the fact that the appellant filed its refund claim immediately, though before a wrong forum, itself proves the bona fides of the appellant and hence, the same establishes the fact that there was an application for refund claim within the limitation period prescribed in the statute, though before a wrong forum. The purchase order coupled with the tax invoice also reflect the position which sufficiently establish the fact that the duty payment, which was not required to be made, but still having been paid, could only be under protest - Further, when the duty itself was not liable to be paid by virtue of N/N. 06/2006, the argument that the appellant was required to make the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause of that, they filed an application for refund before the Directorate General of Foreign Trade (DGFT), Chennai vide application dated 13.12.2011, which was rejected by the DGFT; that against the above rejection, an appeal was preferred before the DGFT, New Delhi and the appellant also filed a refund claim on 17.07.2014 before the Excise authorities. 5. The Adjudicating Authority vide Order-in-Original No. 34/2014 RF dated 11.09.2014, after analysing the above facts, however, rejected the application for refund on the ground that the same was filed beyond the prescribed period of one year. The appellant preferred an appeal against the said rejection before the Commissioner of Central Excise (Appeals-II), Chennai, who vide impugned Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 114 (Mad.), the decision of the Hon‟ble Karnataka High Court in the cases of Dy. Dir. General of Foreign Trade, New Delhi v. M/s. Acer India Pvt. Ltd. reported in 2020 (371) E.L.T. 658 (Kar.) and Commissioner of Central Excise (Appeals), Bangalore v. M/s. KVR Construction reported in 2012 (26) S.T.R. 195 (Kar.) and the order of the Principal Bench of the CESTAT in the case of Commissioner of C.Ex., Bhopal v. M/s. Bharat Sanchar Nigam Ltd. reported in 2017 (345) E.L.T. 549 (Tri. - Del.), to contend that the higher courts, including the Hon‟ble Supreme Court, have clearly held that payment of duty under protest has to be gathered from the fact that there was challenge by appeals and that the same would cover cases where duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till having been paid, could only be under protest. 11. In addition to the above, the main contractor itself has issued a disclaimer certificate wherein it has been clearly and categorically mentioned that the appellant has paid the duty, but the same is not refunded to the appellant and that it has no objection for the appellant to claim refund of the duty it has paid, which, according to me, takes care of the Revenue‟s doubts as to the non-mentioning of the appellant‟s name in the project certificate. 12. Further, when the duty itself was not liable to be paid by virtue of Notification No. 06/2006 (supra), the argument that the appellant was required to make the payment holds no water, as long as the Revenue does not suspect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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