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TMI Blog2022 (9) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... cating order dated 21.10.2004. Section 11B of the Act makes it clear that an application for refund of duty of excise has to be made in the prescribed form before the expiry of one year from the relevant date. Explanation (B) to Section 11B ibid states what is meant by relevant date. As per Clause (ec) of Explanation (B) to Section 11B, in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the relevant date is the date of such judgment, decree, order or direction. No doubt, the appellant became entitled to claim the said refund post the final order of CESTAT dated 31.3.2012, however, admittedly the Revenue filed an appeal against that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/JPR/2018 by which the refund of interest deposited by the appellant has been denied to them. 2. The issue involved herein is the refund of interest amount of Rs. 6,36,889/- paid under protest. A show cause Notice dated 18.5.2004 was issued to the appellant demanding Rs.16,89,669/- alongwith interest and equal penalty. The amount of Rs.16,89,669/- was deposited by the vide TR6 Challan dated 8.2.2003. The aforesaid demand alongwith interest and penalty was confirmed by the Adjudicating Authority vide Order-in-Original dated 21.10.2004. Since no interest was deposited by the appellant, therefore a Memorandum-cum- notice of demand dated 1.12.2005 was issued to them for non-payment of interest in terms of adjudicating order dated 21.10.2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paragraph of the said order is extracted as under:- 6. The aforesaid provision makes it abundantly clear that it is the date of judgement as consequence whereof the amount became refundable. No doubt, the CESTAT s Final order is of 31.3.2012, vide which the amount/duty paid by the appellant was made refundable but the Department opted for continuation of said litigation by filing an appeal before the High Court. Once that option got exercise, the final judgement about entitlement of appellant to have the refund of said amount/duty paid, is the judgement announced by High court in the said appeal. Since the said appeal of the Department was dismissed by Hon ble High court on 21.04.2017 irrespective of technical ground, the fact remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of demand dated 1.12.2005 therefore it cannot be considered as voluntary payment and has to be treated as payment under protest and Section 11B proviso is clear enough to say that the limitation of one year shall not apply where any duty/interest on such duty has been paid under protest. Seen from this angle also, the invoking of limitation issue is absolutely unjustified on the part of authorities below. Lastly, since the refund claim dated 19.2.2018 of duty deposited by the appellant has been granted by this Tribunal by its order dated 29.6.2021 in appellant s own case, therefore on the same lines the refund of interest on the aforesaid duty is also to be allowed as it was filed prior in time i.e. on 16.05.2017. 6. In view of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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