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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 ..... o 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 - 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 voluntary and is not made under protest. Such evidence is not forthcoming in the Revenue s case here. In the case of M/S NIPHAD SSK LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NASHIK [ 2017 (1) TMI 1024 - CESTAT MUMBAI ] Tribunal has held that once the Under Protest letter is filed, it would be applicable for the future payments also. Applying the ratio of this case law, it is held that the Under Protest letter filed at the time of the first payment also holds good for the subsequent payments made. The first letter clearly shows the view of the appellant that they are not in agreement with the stand taken by the Revenue. The appellant cannot be denied the refund of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/- which was paid vide TR-06 challan No. 002, he has rejected the claim on the ground that the same was not paid under protest , since no such letter has been filed by the Appellant. Being aggrieved, the appellants filed their appeal before the Commissioner (Appeals), who has dismissed their appeal. Being aggrieved by the impugned Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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 payment after submission of letter of protest is itself a sufficient compliance. Accordingly, refund claim shall not be hit by time barred provision. Therefore, the impugned Order is liable to set aside on this ground alone. B. WITHOUT PREJUDICE TO OTHER GROUNDS, WHEN THE AMOUNT PAID ON ACCOUNT OF ANY INVESTIGATION/AUDIT AND HAS BEEN CONTESTED FOR ITS LEV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (C) SECTION 11B IS NOT APPLICABLE IN THE INSTANT CASE AS NO TAX WAS DUE TO THE GOVERNMENT. THE ENTIRE AMOIUNT PAID IS IN THE NATURE OF DEPOSIT. WHEREAS, THE PROVISION OF SECTION 11B APPLIES ONLY WHEN THE TAXES HAVE BEEN COLLECTED UNDER AN AUTHORITY OF LAW. (1) In this regard, reliance is placed in the case of M/s. ASL Builders Pvt. Ltd. Vs. Comm. Of Central GST CX reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 voluntary and is not made under protest. Such evidence is not forthcoming in the Revenue s case here 12. We find that in the case of Niphad SSK Ltd. V. CCE, Nashik 2017 (358) E.L.T. 738 (Tri. Mumbai), the Tribunal has held as under : The total refund claim of 39,14,616/- pertaining to the period August, 1999 to February, 2002. The letter of protest first time was submitted by the appellant on 2-8-2000 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. In the present case, the Revenue has not pointed out any factual difference from the above case. Therefore, we hold that the appellant would be eligible for interest from 3 months from the date of their refund claim letter till the refund is granted. 20. Coming to the rate of interest to be taken for such refunds, we find that the Principal Bench of the CESTAT Delhi in the case of Parle Agro Pvt Ltd Vs CCGST, Noida 2022(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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