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2021 (7) TMI 48 - AT - Central ExciseRefund claim of amount deposited during investigation - the appropriation order earlier passed, was set aside - relevant time for refund - what should be the relevant date from which the period of one year is to recon for the impugned refund? - HELD THAT:- Relevant provisions of refund is section 11B of Central Excise Act. Second proviso of (2) to section 11B specifically provide that limitation shall not apply where no duty has been paid under protest - Hon’ble Supreme Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] has clarified that when the duty is paid under the order of Court, pending the appeal / reference/ writ petition, it will certainly be payment under protest - In such a case, it is obvious, it would not be necessary to lodge the protest as is otherwise provided under the Rules. Since the appellant has challenged the amount which got deposited by him during investigation, the protest is very much lodged on his part not as a party to such decision, the plea of limitation should not debar his claim. Section 11B of CEA makes it abundantly clear that it is the date of judgement as consequence whereof the amount became refundable. No doubt, the CESTAT’s Final order in RAY BAN SUN OPTICS INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2012 (12) TMI 260 - CESTAT, NEW DELHI], which the amount/duty paid by the appellant was made refundable but the Department opted for continuation of the said litigation by filing an appeal before the High Court. Once that option got exercised, the final judgement about entitlement of appellant to have the refund of said amount/duty paid, is the judgement announced by High Court in the said appeal. Since the said appeal of the Department was dismissed by Hon’ble High Court on 21.04.2017 [2017 (4) TMI 1154 - ALLAHABAD HIGH COURT] irrespective of technical ground, the fact remains that entitlement of the appellant to refund of duty paid got finalised only on 21.04.2017 hence the relevant date under section 11B(ec) is none but 21.04.2017. Refund claim is filed on 19.02.2018 which, therefore, is very much within one year thereof, hence, wrongly been held to be barred by time. Appeal allowed - decided in favor of appellant.
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