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TMI Blog2024 (9) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... the starting point for deciding the limitation of one year under Section 11B. In this case, the order of the Commissioner (Appeals) of 31.03.2010 itself was the relevant date when the decision went in favour of the appellant and no further appeal was filed by the appellant and they could have taken the credit in their books of account as there was no provision for cash refund under existing law. Apparently, the appellants did not file for any refund or re-credit before the proper authority after the passing of the order by the Commissioner (Appeals). While the general provision of non applicability of limitation would not be applicable in such cases where payment has been made under protest but after insertion of Clause (ec), irrespective o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department noticed that they had taken a credit of Rs. 15,95,280/- in respect of insurance premium paid for group insurance services. According to Department, the credit availed on medical insurance was irregular in view of sub-rule (l) to Rule 2(1) of Cenvat Credit Rules 2004 and therefore they demanded an amount of Rs. 15,95,280/- towards irregularly availed Cenvat Credit under Rule 14 of CCR read with proviso to Section 11A(1) of Central Excise Act, 1944. In the meanwhile, the appellants informed the Department that they have reversed the service tax under protest credit availed on, interalia, health insurance services during the period 10.09.2004 to 31.03.2007. 3. On adjudication, the Original Authority dis-allowed the Cenvat Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ec) of explanation B to Section 11B, and held that the time limit for the said refund is applicable from the date of the order of the CESTAT i.e. 05.05.2016, therefore, making the refund application barred by limitation and therefore rejected the refund claim dated 12.07.2021. 5. On appeal before the Commissioner (Appeals), the issue was examined by the Commissioner (Appeals) who has mainly relied on legal provisions of Section 11B and the facts of the case to decide whether there is any provision for not applying limitation in case of payment under protest or otherwise. He observed that as per second proviso to Section 11B(1), there is a provision that in case the payment is made under protest that the limitation of one year will not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice or otherwise were filed before the appointed day 01.07.2017 and issues were also settled prior to appointed day by Appellate Authority and Tribunal and that the relevant date would be passing of order dated 05.05.2016 by the Tribunal as it had reached finality and appellants has clearly not filed refund claim before expiry of one year before the said date and infact they filed only on 12.07.2021. He has also relied upon certain judgments in support of this. 9. Heard both the sides and perused records. 10. The first issue in Commissioner (Appeals) in his reliance on Clause (ec) of explanation of Section 11B, in the case where duty becomes refundable as a consequence of judgment, decree, order, direction of the Appellate Authority. Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n so far as the issue of eligibility of the credit was concerned and as a consequence, they would have been eligible to take the credit either Suo-moto or under intimation to the Department within one year of said order. However, they did not do so. They have admittedly also not taken this credit before the appointed date 01.07.2017 which could have been migrated through TRAN-1 route under GST Regime. 11. Commissioner (Appeals) has also relied on the judgment of Hon ble High Court of Punjab Haryana in the case of Malwa Industries Vs UOI [2018 (361) ELT 81 (P H)] in support of his views that the refund in the given facts of the case is hit by time limit prescribed under Section 11B. He has analysed the relevant provisions and pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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