TMI Blog2009 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... rder ruling out unjust enrichment sustainable. Appeal dismissed. - E/1225/2006-EX (Br.) - 1407/2009-EX(PB) - Dated:- 26-11-2009 - S/Shri M. Veeraiyan, Member (T) and D.N. Panda, Member (J) Shri S.R. Meena, SDR, for the Appellant. S/Shri Ramesh Nair and Alok Barthwala, Advocates, for the Respondent. [Order per : D.N. Panda, Member (J)]. - Revenue has come in appeal against the Order-in-Appeal dated 15-2-2006 passed by the ld. Commissioner (Appeals) deciding two refund claims of Rs. 45,65,419/- and Rs. 92,28,482/- relating to two different periods on the ground of limitation as well as bar of unjust enrichment. 2. Refund of Rs. 45,65,419/- is relating to the period March, 2000 to October, 2000. Respondent had made paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorically narrated that the protest was all along existing for the refund claim for which that is not time barred. In these two paragraphs, he elaborately explained how the Respondent has also not been unjustly enriched by the claims of refund. 3. Ld. DR on behalf of Revenue submits that adjudication was done properly and protest ended soon after the first appeal was concluded and he relied on the decision of the Tribunal in the case of CCE, Mumbai v. Motor Industries Co. Ltd. - 2004 (170) E.L.T. 439 (Tribunal-Mumbai). He accordingly pleads that when the protest ended, the litigation of the Apex Court is not material to decide the limitation. He supports the order of the adjudication even on the ground of bar of unjust enrichment submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and various other documents annexed to the Balance Sheet to hold that the Respondent had not passed on duty burden to its buyers. The Respondent had also proved its conduct depicting the respective amounts under Schedule 11 of the Audited Statement of Accounts appearing at page 36 of such statement and that reflects conduct of the Respondent in respect of amounts disputed by Revenue, which was not burdened to the consumers. Respondent has discharged its burden of proof for which presumption in favour of Revenue was negated by the learned Appellate authority. Therefore, on both the grounds i.e. limitation and unjust enrichment, the Respondent succeeded before the learned Appellate authority below. Today, Revenue having no material to interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that "the limitation of six months shall not apply where any duty has been paid under protest". Now. where a person 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. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him - and that acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation 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 be from the final decision in the assessee's own case. 8. In view of the law laid down by the Apex Court in the case of Mafatlal Industries and Dena Snuff (P) Ltd., we are unable to agree with Revenue's contention on limitation while appreciating that the decision made by Tribunal in CCE, Ahmedabad v. Plas Pack Industries - 2004 (170) E.L.T. 293 (Tribunal-Mumbai) was on different context. 9. When the law laid down by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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