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2013 (5) TMI 627 - CESTAT AHMEDABADRejection of Refund claim - Wrong availment of modvat credit – Demand of duty/penalty/ - The appellant preferred an appeal against the above order-in-appeal before CESTAT, who allowed the appeal for Rs.19,984/- out of Rs.67,713 and also reduced penalty to Rs.2,500 from Rs.7,000 and accordingly refund claim was filed which was rejected on the ground that the same was filed beyond the time prescribed u/s 11B of the Central Excise Act 1944. Appellant submits that the refund claim is for the amount deposited at the same time challenging the decision to reject the claim. He submits that the amount deposited has to be treated as one paid under protest and therefore the time limit u/s 11B would not be applicable. He relies upon the decision of the Tribunal to submit that when the appellants make payments while challenging the demand that is to be treated as payment under protest. Held that:- Tribunal had considered the amended Section and since the refund claim in that case was filed within one year from the date of amendment, treated the same as a liberal consideration of provisions and decided that the refund claim should be allowed. Proviso introduced in 2007 is applicable in respect of past cases also and the only view or interpretation in favour of the appellant that can be taken is that from the date of amendment, refund claim should have been filed within one year ignoring the earlier period when according to the provisions existing at that time, there was no time limit for refund claim. Payment under this case has not been made under protest and refund claim filed by the appellant is also delayed. Thus, the appeal is rejected.
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