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TMI Blog2003 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the relevant paragraph in Mafatlal Industries (supra) was correct. The cause of action of the appellant would arise only after the final dispute regarding the classification list had been settled by this Court. That was done as recently as on 28-8-2003. The application for refund by the appellant was therefore premature. We have noted the proviso to sub-section (1) of Section 11(B) which says that the period of limitation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which date will the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Industries decision which has been relied upon by the Tribunal it would have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products were classifiable under Tariff Heading 2404.50 from 25th August, 1990. The payments were made under protest. 2.The classification list was approved on the basis that the appellant's products were classifiable under sub-heading 2404.50 in 1994, In the same year, on 18-2-94 the Central Excise and Gold (Control) Appellate Tribunal (CEGAT) decided in a similar case (Lachman Das Bihari Lal) that the products were classifiable under sub-heading 2404.60. On the basis of this decision of the Tribunal, the appellant filed an application for refund of the duty which had been paid by it under protest on the basis of the classification of its product under sub-heading 2404.50. 3.As far as the departmental authorities are concerned, they t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) of the decision of this Court in Mafatlal Industries (supra) and that paragraph did not in any way preclude an application for refund being made in respect of duties paid under protest. The second submission is that in any event this Court in Sinkhai Synthetics Chemicals (P) Ltd. v. Collector of Central Excise, Aurangabad reported in 2002 (9) SCC 416 has held that Sections 11A and 11B did not apply to duty paid under protest. 5.As far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries (supra) was correct. The "cause of action" of the appellant would arise only after the final dispute regarding the classification list had been settled by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether the decision in 2002 (9) SCC 416 would be applicable to the appellant's case. 7.The appeal is accordingly allowed without any order as to costs. Civil Appeal No. 1458 of 2003 : 8.The issue raised in this appeal is as to whether the appellant was entitled to refund. The appellant's application for refund has been rejected by the Departmental authorities on the ground that no evidence had been adduced by the appellant that the burden of the higher rate of duty on the appellants' products for the material period has been passed on to their customers. The Tribunal has recorded that this finding of fact had not been challenged in the appellants' appeal nor has any evidence had been adduced before it by the appellant to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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