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TMI Blog2025 (1) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... vant date for granting the refunds after orders of the Appellate Authority, Appellate Tribunal or any Court starts from the date of such degree, order or judgement, and therefore, the statutory limitation provided in the Act itself has no ambiguity and is therefore sacrosanct. The decisions of the Adjudicating Authority in both the orders which are under appeal are found to be factually correct and legally appropriate and are as per law. Since the refund claims in both the cases were made much after the expiry of one year of the Hon'ble Tribunal's dated 05.04.2017, both the refund claims were found to be hopelessly barred by limitation under Section 11B of the Central Excise Act, 1944. 14. Statutory authorities cannot act against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation. 2.6 Appellate authority has dismissed the appeal filed by the appellant as per the impugned order. 2.7 Aggrieved appellant has filed this appeal. 3.1 This matter has been continuously listed for a number of time i.e. on 17.08.2023, 18.08.2023, 15.09.2023, 24.11.2023, 18.12.2023, 07.03.2024 and today i.e. 08.04.2024. While adjourning the matter on last occasion it was specifically stated that no further adjournment would be allowed. 3.2 Section 35 C (1A) reads as follows: "35C. Orders of Appellate Tribunal (1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the appellant in this regard. 4.4 The facts of the case as recorded in the order dated 05.04.2017 are as follows: The brief facts of the case are that appellant were engaged in the manufacture of Pipes & Tubes. The goods manufactured were both sold at the factory gate and were also transferred to consignment agent. In respect of the goods transferred to consignment agent the goods were assessed provisionally at time of clearance from the factory gate and on the basis of actual consideration received the assessment was finalized. In respect of provisional assessment for the period from 01/04/2005 to 31/03/2006 finalization was ordered through Orders-in-Original No. 180-181/ Provisional- Assessment/JPL/2008 dated 14/08/2008, Finalizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) appellant is before this Tribunal." 4.5 From plain reading of the above it is evident that the amounts have been deposited as per the direction of the departmental officers in respect of certain shortages detected at the time of visit. The amounts so deposited on the direction of the departmental officer cannot be said to be voluntary deposit. Further appellant have contested the demand and have finally succeeded in getting the same set aside by the tribunal. As the appellant was contesting the demand the amount paid by them were necessarily not paid voluntarily but were paid under compulsion from the officer and were paid under protest. 4.6 Further it needs to be noted that the amounts paid by the appellant were in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment 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." 4.8 Similar view was expressed by the tribunal in case of Hawkins Cookers Ltd. [2017 (346) E.L.T. 298 (Tri. - Mumbai)] observing as follows: "5. I find that the original dispute raised by the department is that the admissibility of Cenvat credit in respect of packing material. Due to the dispute, appellant reversed the Cenvat credit. On the said dispute appellant succeeded partly before the Tribunal. Accordingly, amount reversed was claimed as a refund. I find that this is not a case of refund of excise duty paid on final product whereas originally it is an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are set aside by the higher authorities. By following the above decision, we hold that the claims filed by the appellants for refund of Service Tax deposited under the directions of the authorities and subsequently confirmed by the adjudicating authority but set aside by the Commissioner (Appeals) are required to be sanctioned, without applying the bar of limitation reckoned from date of deposit...." 4.11 Board has vide circular No 984/8/2014-CX dated 16.09.2014 clarified as follows: "5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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