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2021 (2) TMI 1044 - HC - Central ExciseRefund of tax amount paid - Amount paid under protest - applicability of time limitation - It is the case of the petitioner that by oversight it had not paid duty on goods captively consumed and had also wrongly availed Input Tax Credit, MODVAT Credit under the provisions of the Central Excise Rules, 1944 - HELD THAT:- Excess after adjustment of cumulative tax liability has to be refunded back. Question of invoking the limitation prescribed under Section 11B of the Central Excise act, 1944 is misplaced as the amount paid pending investigation are nothing but the amount paid “under protest” as has been held by the Hon’able Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT]. Thus, the observation of the first respondent Settlement Commission that the petitioner was required to file a refund claim within one year from 11.01.2002, i.e on or before 11.01.2003, cannot be countenanced. The amount that was paid by the petitioner was otherwise liable to be adjusted or refunded subject to outcome of the Show Cause Notice dated 02.12.2002. The petitioner opted to settle the case before the first respondent Settlement Commission by offering an amount of ₹ 24,13,268/- in full and final settlement of its tax liability under the case initiated by the second respondent - Under the circumstances, the amount that was paid by the petitioner in excess of the amounts due for the period covered by the Show Cause Notice towards captive consumption of paper cone and bleach liquor was to be adjusted towards the tax liability towards input tax credit wrongly availed by the petitioner and balance if any was liable to be refunded to the petitioner. Though the petitioner had voluntarily paid the aforesaid amount during the course of investigation, in absence of the appropriation of the excess amount towards any other tax/duty liability of the petitioner, it was to be refunded back from the date of the impugned order of the first respondent Settlement Commission. The first respondent Settlement Commission cannot artificially impose a new period of limitation especially when the proceedings were pending before it - Having granted immunity and the waiver from payment of penalty, the amount paid in excess by the petitioner before the second respondent cannot be retained by the second respondent on the ground that the refund claim was time barred. The impugned order directing the petitioner to pay a sum of ₹ 9,36,279/- within 30 days and refusing to refund the balance amount is liable to be quashed - Refund allowed - petition allowed - decided in favor of petitioner.
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