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2015 (10) TMI 1560 - AT - Central ExciseClaim of refund - period of limitation - duty was paid under protest or not - Denial of exemption under the Notification13/94-CE(NT) and 8/96 - Classification - Held that:- Appellant protested the recovery of duty by the ordinance factory from him and later contested the claim right up to the Hon ble High Court. It is only when High Court decided that the civil Courts did not have jurisdiction in the matter they approached the department with a refund application. There is no doubt that the appellants have been protesting against recovery of this amount right from the day the same was recovered from them. However can this be considered a valid protest for the purpose of section 11 B. Tribunal in the case of Kota Oxygen Limited [2000 (9) TMI 163 - CEGAT, NEW DELHI] has ruled that the duty paid while contesting the said payment before appellate forum is to be considered as duty paid under protest. For this the tribunal relied on the decision of Hon ble Supreme Court in case of Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. There is no evidence that the delay or litigation was deliberate. In the instant case it is apparent that the appellants were contesting the liability right from the date of payment of duty before various forums. Thus it can be considered that the duty was paid by them under protest. In view of above the refund claim cannot be considered as time-barred. Issue of classification and availability of exemption - Held that:- impugned order does not deal with the same. No findings have been given on the matter of classification in the impugned order and to that extent it is a non-speaking order. - Matter remanded back - Decided in favour of assessee.
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