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TMI Blog2025 (1) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... d to retain the amount deposited by the appellant, the next issue is regarding the time limit for reversing the said amount to the assessee. The Madras High Court in M/S. NATRAJ AND VENKAT ASSOCIATES VERSUS ASSISTANT COMMISSIONER, SERVICE TAX [2009 (10) TMI 36 - MADRAS HIGH COURT] and the Punjab and Haryana High Court in INDIAN OIL CORPORATION LTD. VERSUS COMMISSIONER OF C. EX., NEW DELHI [2010 (4) TMI 625 - PUNJAB & HARYANA HIGH COURT] held that once the tax was not payable at all, time limit does not apply for filing the refund of the said amount. The other issue that 'under protest' was not made in the prescribed format, is irrelevant. It is a settled principle that on mere procedural technicalities, the relief cannot be denied, which otherwise is available to a party. For the period prior to the introduction of Rule 233B (01.06.1981), there was no specific provision prescribing any specific mode of endorsing 'under protest' and, therefore, the appellant cannot be non-suited for not making proper endorsement. The refund claim cannot be rejected for non-compliance with the provisions of Rule 233B. The endorsement 'under protest' on the gate passes by the appellant is sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icity Aluminium conductors i.e. wires are used and to support those wires and also to maintain sufficient safe ground clearance, high towers are erected by reverting, bolting, welding of angle iron, plates, channels, rods, iron patti, etc. MPEP is a single legal entity having various workshops across the State at Bhilai, Jabalpur and Sehore (present case pertains to Sehore). 3. On the introduction of the [Residuary Clause in 1975] as Tariff Item No.68, the Central Excise Department vide their letter dated 13.11.1976 compelled the MPEB to take central excise registration in respect of the activity of fabrication of transmission towers and pay the excise duty thereon. Though the appellant disputed that the provisions of the Central Excise Act were not applicable as the process did not amount to manufacture, however, they, obtained L-4 licence 'under protest'. The endorsement of 'under protest' was made on the gate passes and other documents, during the entire period since the date they had been paying the duty. The clearances were made on the basis of provisional assessment, which were finalised on 29.03.1988. 4. The issue whether fabrication of transmission towers amounts to manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority as being hit by the provisions of Section 11B(1) prescribing the time limit for making the refund claim and also on the ground on unjust enrichment. Surprisingly, the Adjudicating Authority rejected the entire refund claim for the period 01.01.1977 to 31.03.1989 including the refund of Rs.16,45,000/- for the period 20.07.1988 to 31.03.1989, which was already paid vide order dated 01.02.2018. The appellant challenged the said order and the Commissioner (Appeals) vide impugned order has rejected the refund claim distinguishing the earlier case of the appellant decided by the Supreme Court on the ground that the appellant has not produced any documentary proof regarding lodging of protest. Hence the present appeal has been filed before this Tribunal. 8. Heard Ms. Reena Khair and Ms. Vrinda Bagaria, learned counsels for the appellant and Shri S.K. Ray, learned Authorised Representative for the Respondent. 9. Learned Counsel for the appellant has challenged the impugned order firstly on the ground that the same has been passed in violation of the remand order of this Tribunal dated 16.07.2019 holding that the decision of the Supreme Court in M.P. Electricity B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.1981 were time barred. For the period post 1.6.1981 when Rule 233B introduced a mandatory procedure for making the payment under protest, the appellant failed to submit the valid protest despite making payments during 1.6.1981 to 19.7.1988. The learned Authorised Representative relied on the decision of this Tribunal in Shree Shyam Filaments Vs. CCE, Jaipur [2002(148) ELT 434]. 11. The undisputed fact is that the appellant was not registered with the Central Excise Authorities as the activity of fabrication of transmission towers carried out by them did not amount to manufacture and was therefore, not leviable to excise duty. However, pursuant to a letter by the Excise Department, they were constrained to obtain the L-4 licence and pay the duty on provisional basis 'under protest' as per the endorsement on gate passes and other documents. We are also conscious of the fact that the issue whether the activity undertaken by the appellant amounts to manufacture was under dispute and was decided by the Tribunal in M/s. SAE India Ltd. (supra) and other line of decisions. We are of the considered view that any amount, which the Department collects from the assessee is not necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, hold that the refund claim filed by the appellant cannot be rejected on the ground of limitation for the simple reason that it is the Excise Department, who constrained them to get registered and pay the excise duty despite the stand taken by the appellant that the activity undertaken by them does not amount to manufacture and which stands affirmed by the Tribunal. It is relevant to take note of the observations of the Delhi High Court in Team HR Services Pvt. Ltd. [2020(38) GSTL 457] that such deposits under protest, to ease the rigors, which the tax Authorities otherwise are entitled to impose, are not unknown and judicial notice has been taken thereof. In other words, the Government cannot be allowed to retain the amount deposited by the appellant as it was collected under mistake of law. 14. Having arrived at the above conclusion, although it is not necessary for us to examine whether the duty was paid 'under protest', however, since all throughout the issue has been based thereon we would like to consider it. Before adverting to the compliance of paying the duty under protest, we need to appreciate that appellant being a statutory body follows uniform practice in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally held that the procedure prescribed under Rule 233B is only directory in nature and not mandatory and therefore protest endorsed on the PLA is also a protest for the purpose of paying duty. Before concluding, we would like to refer to the decision in the case of the appellant, titled as M/s Ex. Engr. Workshop Division MP Electricity Board vs. C.C.E, Raipur [1997(94) ELT 445(SC)], which substantiates the plea of unjust enrichment taken by the appellant with respect to their Raipur unit. The Apex Court taking into consideration the correspondence between the Excise Department and the appellant rejected the objection of the Department that 'under protest' was only with reference to the taking of L-4 license and was held to be construed to mean that protest was lodged against obtaining the license as well as against the liability to payment of excise duty. The Tribunal, while remanding the case vide its order dated 16.07.2019 rightly observed that the case is prima facie covered by the decision of the Supreme Court in M.P. Electricity Board (supra) and, therefore, the Adjudicating Authority should decide the same in light thereof. We are of the view that the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions issued under the provisions of Section 11 AA, 11 BB and 11 DD of the Act providing the interest rate from 6% to 15% and accordingly increased the rate of interest from 6% to 12% per annum. Following the said decision, the grant of interest at 12% per annum on the refund amount is appropriate. 19. We, therefore hold that: i) duty was collected by the Department under mistake of law for which no time limit applies and, therefore, the refund claim on the ground of delay has been wrongly rejected. ii) the endorsement on the gate passes, 'under protest' is sufficient to indicate that the appellant has paid the duty 'under protest' and hence, the refund claim cannot be rejected as time barred. iii) retention of the amount which is in the nature of revenue deposit would be wholly unjustified being violative of Article 265 of the Constitution. iv) the appellant is entitled to the refund claim along with interest @ 12% per annum from the date of refund claim was rejected. 20. Having arrived at the above conclusion, the impugned order is set aside and the Department is directed to release the refund along with interest to the appellant. The appeal is, accordingly allowed with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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