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TMI Blog2008 (9) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner rejected the appeal filed by them on the ground of limitation. Once the order in original has attained finality duty paid consequent to the order in original cannot be claimed as refund - E/1142/2007 - A/1971/2008-WZB/AHD - Dated:- 15-9-2008 - Shri B.S.V. Murthy, Member (T) Dr. M.K. Rajak, SDR, for the Appellant. Shri D.K. Trivedi, Advocate, for the Respondent. [Order]. - This appeal has been filed by Revenue against the order in appeal passed by the Commissioner (Appeals) holding that the respondents are entitled to refund of Rs. 4,26,976/-. 2. The brief facts of the case are as under: (a) The respondents are engaged in the manufacture of angles, shapes and sections of Chapter heading No. 7301120 and other artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents were not excisable, respondents filed refund claim before the Assistant Commissioner for Rs. 4,28,976/- paid by them during the year 2004 which has been rejected by the original adjudicating authority on the ground that the order in original confirming demand of differential duty and imposing penalty and interest has become final in view of the rejection of the appeal filed by the respondents. Respondents filed appeal against this order and Commissioner (Appeals) allowed the appeal in the impugned order. Hence, the appeal by Revenue. 3. Learned SDR on behalf of the Revenue submitted that it is well settled now that once an order attained finality, the consequence would automatically follow. In this case, what is relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. reported in 2008 (222) E.L.T. 497 (All.), C.C.E., Chennai I v. ITC Ltd. reported in 2006 (204) E.L.T. 363 (S.C.), it was held that if the order in original is not appealed against it attains finality. Duty paid in pursuance of O-I-O No. 4/8/2003-AC dated 30-4-2003 on 25-9-2004, 30-10-2004, 3-11-2004 and 5-11-2004, almost after one and half year of the date of OIO, hence cannot be said as paid under protest. That is basically compliance of the order. Under protest comes into picture when the matter pertains to provisional assessment or deposit during investigation i.e. a stage prior to final order or OIO. Once OIO is passed, relief depends upon the outcome of appeal, if any filed against such order. Till then OIO holds the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee consequent to which assessee had filed refund claim which was decided by the Tribunal against them. He also cited the decision of the Hon'ble High Court of Karnataka in C.C.E., Bangalore-III v. Motorola India Pvt. Ltd. reported in 2006 (206) E.L.T. 90 (Kar.) = 2008 (11) S.T.R. 555 (Kar.) wherein it was held that amount paid in excess by mistake was termed as duty, time bar is not applicable. He also pointed out that similar decision has been taken by the Tribunal in C.C.E. v. R.M. Cylinders Pvt. Ltd. reported in 2006 (198) E.L.T. 45 (Tri.-Bang.), Commissioner of Sales Tax, U.P. v. Auriaya Chamber of Commerce reported in 1986 (25) E.L.T. 867 (S.C.) and India Cements Limited v. C.C.E. reported in 1989 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is not relevant in view of the fact that in that case, the assessee had debited excess amount in PLA/Cenvat credit amount. They had brought it to the notice of the Department within three months and the authorities had directed the respondents to file refund claim and thereafter refund claim was rejected on the ground of time limit. On the basis of these facts, the High Court had allowed the refund claim of the party. Similarly, in India Cement Ltd. case also, the assessee had written a detailed letter and produced it to the Department regarding superfine cement regarding includibility of packing charge but the refund claim had been rejected on the ground that duty was not paid under protest. It was held by the Supreme Court that letter w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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