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TMI Blog2022 (12) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 1486 - ALLAHABAD HIGH COURT] relied by appellant there is clear finding of the tribunal that the duty has been paid under protest and therefore, the facts are different from the instant case. In the instant case there is no finding that duty has been paid under protest. Appeal dismissed. - Service Tax Appeal No.10996 of 2021 - Final Order No. A/11881/2022 - Dated:- 8-12-2022 - MR. RAJU, MEMBER (TECHNICAL) Shri Sudhanshu Bissa, Advocate for the Appellant Shri Ghanasyam Soni, Joint Commissioner (AR) for the Respondent ORDER This appeal is filed by M/s. John Energy Ltd. against rejection of refund claim on the ground of limitation. 02. Learned counsel for the appellant pointed out that they certain investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id cannot be treated as duty paid under protest. He further pointed out that the said decision of the Hon ble High Court has been upheld by the Hon ble Apex Court by dismissing the SLP filed by M/s. AJNI INTERIORS. Learned AR also relied on the decision of tribunal in the case of RATNAMANI METALS TUBES LTD.- 2019 (366) E.L.T. 139 (Tri.-Ahmd.) 04. I have considered the rival submissions. I find that it is not in dispute that when the amount was paid during investigation no formal protest was launched at the time of the said deposit. It is also not in dispute that duty was otherwise leviable and it was not a tax collected under mistake of law or unconstitutionally. It is also not in dispute that refund claim has been filed beyond the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the grounds of protest. It is open to him to say that according to him, the duty is not exigible. according to law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him and that acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of duty was intended to prevent the incidence of interest and liability accruing from the non-payment of duty, and hence, it cannot be termed as deposit. Therefore, the payments made by the petitioner towards Excise Duty in Challans Form No.TR-6, can never partake characteristic of pre-deposit as mentioned in Section 35F of the Act, as argued by learned advocate for the petitioner. Under the circumstances, the contention that the amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits deserves to be rejected. Firstly as discussed hereinabove the payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al that the duty has been paid under protest and therefore, the facts are different from the instant case. In the instant case there is no finding that duty has been paid under protest. 4.4 In the case of H.V. CERAMICS, it is not under dispute that the duty was indeed paid under protest therefore, the facts are distinguishable. 4.5 Decision in case of ASHOK SHETTY ASSOCIATES C.A.(supra) has been relied by the appellant. The said decision has in turn relied on the decision of Hon ble High Court in the case of KVR CONSTRUCTION. It is noticed that decision of Hon ble High Court in the case of KVR CONSTRUCTION was passed in the writ jurisdiction. It is also noticed that in the case of KVR CONSTRUCTION, the duty was not payable at all, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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