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TMI Blog2025 (1) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax is payable from 1.7.2010 only. 2. The appellants filed their refund claim for Rs.25,33,720 on 22.11.2007. The Revenue issued SCN on 14.01.2008, seeking to know as to why the refund claim should not rejected. After due process vide OIO dated 14.11.2008, the refund claim was rejected. Being aggrieved the appellants filed their appeal before the Commissioner (Appeals), who upheld the OIO and dismissed the appeal filed by the appellant. Against this OIA, the appellant filed their appeal before the Tribunal, which vide Final Order No. FO/76835-76838/2018 dated 29-10-2018, held that no Service Tax was required to be paid during the impugned period and remanded the matter back to the Adjudicating authority to verify the claim of the appellant about making their payment 'Under Protest'. 3. In pursuance to the above mentioned CESTAT Order, the Appellant vide letter dated 01.02.2019 has submitted an application along with acknowledged original copy of protest letter dated 28.03.2006 and requested the refund to be granted. Out of the total refund of Rs. 25,33,720/-, the Asst Commissioner granted the refund of Rs. 17,28,454. In respect of the balance amount of Rs. 8,05,266/- whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first protest letter, shall be covered under the said protest letter. (6) The Appellant again submits that they have already filed the protest letter at the time or before making the first deposit. Thus, once a protest letter is filed, all subsequent payment for the similar matter shall be deemed to be treated as payment made under protest and shall be covered under the first letter of protest filed. Thus, the Appellant is not required to file protest letter again and again as one protest letter is sufficient for subsequent payments also. (7) To substantiate the above said proposition, the Appellant relies upon the case of Niphad SSK Ltd. V. CCE, Nashik 2017 (358) E.L.T. 738 (Tri. - Mumbai) point No. 4 wherein it was observed by the Hon'ble Tribunal that once the letter under protest have been submitted, the subsequent payment made are also covered under the protest letter filed. (8) On the basis of aforesaid relied upon judicial pronouncement, the Appellant submits that, since one protest letter has already been filed in due course, the rejection of refund of Rs. 8,05,266/- for want of protest letter again is ex- facie arbitrary and not tenable. Hence, subsequent payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest". Relying on these observations of Hon'ble Supreme Court, the Tribunal in the cases of CC (Prev.), Jamnagar v. Continental Petroleums Ltd., reported in 2009 (234) E.L.T. 333 (Tri.-Ahmd.) and CCE, Aurangabad v. Klasspak Pvt. Ltd. reported in 2005 (179) E.L.T. 365 (Tri.-Mumbai), has held that when matter is under litigation, payment of duty made is deemed to be payment under protest, even though there is no express mention of payment having been made under protest. Thus in this case, the debit of the disputed amount on 4-1-05 in RG 23A Pt. II account has to be treated as having been made under protest and hence the limitation period under Section 11B for its refund would not be applicable." 7. On the basis of above-mentioned judicial pronouncements, the Appellant submits that, the observation based on which the Ld. Commissioner (Appeals) has rejected the refund claim of Rs. 8,05,266/- is clearly against the settled position of law. Hence, the entire Order fails on this score alone. The impugned Order is thus liable to be set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e normal course. When the enquiries were made, they made two payments of Rs.17,28,454/- on 30.03.2006 and Rs.8,05,266/- on 05.07.2006, filing their under protest letter dated 28.03.2006. Both the payments have been made after this protest letter. No doubt the letter dated 28.03.2006, specifically mentions the payment of Rs.17,28,454 as being done 'under protest'. But the fact remains that the subsequent payment was made only on 05.07.2006. Just because of the fact that a separate letter towards under protest was not filed, the Dept cannot take a stand that the second payment was paid voluntarily in the normal course. The Dept. has not come out with any evidence to the effect that this payment was made in the normal course not on account of the investigation taken up by the Revenue. The letter filed towards 'under protest', is to be taken as the assessee's view. Filing such a letter clarifies that they are not subscribing to the view of the Revenue that Service Tax is payable. Such letter would have to taken as the one which pertains to all the payments made subsequently, unless the Revenue comes out any evidence to the contrary to the effect that subsequent payment has been made vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be denied the refund of the second amount of Rs.8,05,266/-. 16. Accordingly, we set aside the impugned order and allow the appeal to this extent. 17. The appellant has also claimed that they should be granted the interest on the refund in terms of Section 11BB. 18. In the appellant's own case, in respect of already granted refund of Rs. Rs. 17,28,454, their appeal was before this Bench. Relying on the judgement of the Hon'ble Supreme Court in the case of Ranbaxy Laboratories Ltd. Vs. UOI reported at 2011 (273) E.L.T 3 (S.C.), Atmiya Engineering and Plastics Vs CCE & ST Vadodara , vide FINAL ORDER NO. A/ 10311 /2022 and Tengapani Tea Estate, M/s. Betjan Tea Estate Vs. Commissioner of CGST & CX, Dibrugarh Commissionerate - 2021 (9) TMI 22, this Bench has held as under : 13. Therefore, following the ratio laid down in the above case laws, we hold that the appellant is eligible for the interest taking the refund claim date as the base. The appellant has filed the refund claim on 22.11.2007. Hence after considering the period of 3 month's for processing of this application, the interest would be payable from 22.02.2008 till the date on which the refund has been paid to them. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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