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TMI Blog2024 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... R ]. Similarly, Tribunal in the matter of M/s Industrial Equipment Co Ltd [ 2021 (9) TMI 493 - CESTAT CHANDIGARH ] also considered the issue and following the following view taken by Hon ble High court of Karnataka in the matter of KVR Construction [ 2012 (7) TMI 22 - KARNATAKA HIGH COURT ], distinguished the judgement of Ajni interiors held that refund claim is not barred by limitation. The provisions of Section 11B(5) (ec) of Central Excise Act, 1944 will apply only in respect of excise duty paid by the appellant and not applicable for refund of Rs. 26,38,300/- including Rs.24,27,751/- being credit and interest of Rs. 2,10,549/- deposited by appellant during investigation to cover the alleged wrong claim of CENVAT Credit which was held unsustainable by this Tribunal in appeal. Appeal allowed. - Hon ble Mr. P. A. Augustian, Member ( Judicial ) For the Appellant : Mr. Sayeed Peeran, Advocate For the Respondent : Mr. Rajesh Shastry, AR ORDER The Appellant is manufacturing Cement. Appellant was paying central excise duty on the final product and were availing CENVAT credit of duty paid on steel and cement used in construction of silos and packing plants. Appellant had availed simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Counsel for the appellant submits that appellant has not paid the amount voluntarily to Excise duty and it was paid only due to compulsion of the investigating officer. Thus it has to be treated as pre-deposit and appellant is not liable to submit refund application as per Section 11B of the Central Excuse Act, 1944. In support of the above, the appellant relied on large number of decisions including judgment of the Hon ble High Court of Karnataka in the matter of Suretex Prophylactics(India) Private Limited In W.P (c) No 2444/2022 (t-CUS) wherein the Hon ble High Court held that : - 18. Learned Senior counsel for the petitioner is also correct in his submission that in the case of Central Excise Vs. KVR Construction 2012(50) VST 469, while construing section 11B of the Central Excise Act, the Hon ble Division Bench of this court held as under:- 33. We may also refer hereon a Division Bench judgment of Karnataka High Court in Commissioner of Central Excise Vs KVR Construction (2012 (50) VST 459), wherein construing Section 11B, Court said that it refer to claim for refund of duty of excise only and does not refers to any other amount collected without authority of law. That was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondents themselves, there was no order of adjudication nor any other proceedings or order which initiated by the respondents, which entitled them to recover the said amount from the petitioner in the absence of any order of adjudication or any other material in this regard, the respondents did not have recover the said amount from the petitioner. 21. At any rate, a perusal of Section 27 of the Customs Act, will also indicate that the same would apply only pursuant to an order in respect of customs duty paid by the petitioner and not when the order of tax/duty has to be collected/recovered from the petitioner, which is in the nature of pre-deposit. Under the circumstances, even this contention urged by the respondents cannot be accepted. 3. Ld Counsel also drawn our attention to the judgment of Hon ble Supreme Court in the matter of M/s Mafatlal Industries Ltd Vs UOI (reported in 1997 (89) E.L.T 247 (SC) wherein the Hon ble Supreme Court held that : 82. .All claims for refund, arising in whatever situations (except where the provision under which the duty is levied is declared as unconstitutional), has necessarily to be filed, considered and disposed of only under and in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment was being contested by them from the adjudicating stage till they won the appeal before the Tribunal. Therefore such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving then refund. They rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order. The appeal is , therefore allowed. 6. Ld. Counsel also relied in the matter of M/s Nissan Copper Ltd (reported in 2014- VIL-924-CESTAT-AHM-CE) and Commissioner of C. Ex Service Tax, Bhavnagar Vs M/s HK Dave Ltd (reported in 2015 (38) S.T.R 77 (Tr.Ahmd). 4. Heard both sides and perused the case records. Brief facts of the case are that appellant paid certain amount during the course of investigation and contested the issue on merits in the appeal proceedings. The amounts paid by the present Respondent were considered sufficient by CESTAT in an appeal filed by Respondent for satisfying the deposit requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered for extracting the said payment from the petitioner, and hence for all purposes said payment can be treated as the payment under protest. The petitioner s case, therefore squarely falls within the second proviso to Section 11B(1) of the Act which says that the limitation of six months shall not apply where any duty has been paid under protest. The petitioner therefore moved an application for refund of Rs.5,40,847/- on 23/02/2000 pursuant to the order passed by the respondent No.2 on 18.04.2000 confirming the demand of Rs. 15,69,046/- and order for refund of balance amount of Rs. 5,40,847/- being excess payment. In this context, the following observations made by the Hon ble Supreme Court in the case if Mafatlal Industries Ltd Vs. Union of India (supra) are very pertinent. 8. The Ld. DR reiterated the finding of the adjudicating authority and appellate authority. Ld. DR submits that the refund claim was filed on 14.03.2019 which is beyond the relevant dated prescribed under Section 11B (5)(ec) of the Central Excise Act, 1944. Ld DR relied on the judgment of the Hon ble Gujrat High Court in the matter of M/s Ajni Interiors Vs Union of India one another (reported in 2019 (9) TM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund in the normal course, i.e where refund is not claimed as a consequence of any Act specified thereunder. 10. The Ld DR further submits that there is no such order issued by Tribunal considering the amount deposited by the appellant as pre-deposit. The claim of refund is strictly governed by Section 11B of the Act and the impugned order is sustainable. 11. Ld. Counsel appearing for the appellant submitted an additional written submission wherein it is held that the judgment of Hon ble High Court relied by respondent in the matter of M/s Ajni Enterprises and M/s AAR Metal Refinery (supra) are not sustainable considering the facts and circumstances of the present case. In the matter of M/s Ajni Enterprises, there is no such order issued by Tribunal considering the amount deposited by the appellant as pre-deposit as held by this Tribunal while considering the stay petition submitted by the appellant. Further submitted that the judgment of the Hon ble High Court in the matter of M/s Ajni Enterprises was distinguished by Hon ble High Court of Madras in the case of M/s Daily Tamthi (reported in 2021 (376) E.L.T 515 (Mad)) wherein it has been clearly held that the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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