2022 (11) TMI 337 - AT - Central Excise
Refund of CENVAT Credit reversed under protest - clearance of the waste products namely bagasse and press mud which emerged during the course of manufacture of sugar - time limitation u/s 11B of the Central Excise Act, 1944 - HELD THAT:- The appellant has reversed the credit for the period 1.4.2010 to 1.5.2013 and refund claim has also been filed for this period. The department has calculated the period of one year from the date of reversal and taken the view that the refund claim is barred by limitation. It is to be noted that the appellant had reversed the credit and intimated the department by issuing letters on various dates - the appellant has noted that they dispute the payment or reversal of credit. It is not necessary that the exact words ‘payment made under protest’ has to be written by the assessee. Protest means disagreement. If a note is given along with the reversal of credit that they are paying the amount only by abundant caution and intend to proceed with litigation would necessarily mean that they are reversing the credit under protest. Further, in the present case a protest cannot be made on the invoice or bill of entry as is usually done. It is a case of making payment by reversal of credit in their CENVAT account. The only method by which the appellant could intimate or inform their protest is by issuing a letter to the department that they are paying the amount are disputing the payment made.
The demand having been dropped by the department, the consequence would be that the appellant would be eligible for refund of the credit that has already been reversed. It clearly shows that the issue was under litigation which is indication of protest / disagreement. The factual matrix would be that the issue was in dispute and the appellant was disputing the amount alleged to be payable by them. The letters issued by the appellant every month intimating the reversal as well as reserving their right for litigation would show that the credit has been reversed under protest.
The allegation that the refund claim is hit by time-bar cannot sustain and requires to be set aside - Appeal allowed.