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2023 (5) TMI 515 - CESTAT NEW DELHIRefund claim - requirement of inclusion in the assessable value, the VAT amounts paid by the assessee using VAT, 37B Challans - amount deposited under protest or not - mark of protest in the cenvat credit account - rejection on the ground of time limitation - time limit prescribed under section 11B of Central Excise Act, 1944 - HELD THAT:- The appeal before the Tribunal was allowed in [2018 (4) TMI 1787 - CESTAT NEW DELHI], in favour of the appellants relying on the earlier decision of the Tribunal in the case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI], which was based on the decision in the case of Wellspun [2017 (5) TMI 177 - CESTAT MUMBAI], which concluded that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT, 37B Challans - Thus, the impugned orders were set aside and the appeal was allowed. Time Limitation - HELD THAT:- Section 11B (1) prescribes the period of one year from the relevant date and the term „relevant date‟ is then defined under the Explanation as given above and the relevant clause (ec) specifically provides that in case the amount is refundable as a consequence of a judgement or order of an appellate Tribunal or any Court, it is the date of such judgement, decree, order or direction - In the present case, the amount became due by virtue of the decision of the Tribunal in [2018 (4) TMI 1787 - CESTAT NEW DELHI] whereby the impugned order including the subsidy amount in the transaction value was set aside and the appeal was allowed with consequential relief, which obviously implied that the amount so deposited by the appellant has to be refunded and therefore if the period of one year is computed from the said date, the application for refund dated 09.01.2019 was within the limitation period of one year. On this count itself the refund claim ought to have been allowed. Whether the amount deposited by the appellant was "under protest"? - HELD THAT:- Having considered, the Supplementary Instructions, Chapter 13 of CBECs Excise Manual, which provides the procedure to be followed, it is found that it seems to be substantially complied with as the Cenvat account do mentions that, “central excise duty debited against the amount received as State VAT subsidy under protest”. The same cannot be ignored and the appellant is entitle to the benefit of the proviso to section 11B of the Central Excise Act, 1944, which specifically says that period of limitation of one year shall not apply where duty and interest is paid under protest. Appeal allowed.
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