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2021 (8) TMI 687 - AT - Central ExciseRefund claim of pre-deposit - applicability of time limitation - duty paid is under protest or not - adjust of refund with duty at the instance of department - whether the refund claim as was filed on 24.11.2017 is hit by the time limit prescribed under Section 11 B of Central Excise Act? - HELD THAT:- The Section 11 B talks about the refund of duty and requires that application for refund of such duty has to be made within a period of one year from the relevant date. Relevant date has been defined in the Section itself under sub-clause 5 (B). Apparently and admittedly the refund claim has been filed post this dismissal of Revenue’s appeal, on 24.11.2017. So seen from the angle of time bar issue as invoked by the Department, it is held that the period of one year as per section 11B (B) (ec) is the date of decision of Rajasthan High Court in COMMISSIONER, CENTRAL EXCISE & SERVICE TAX-I, JAIPUR, RAJASTHAN VERSUS RAJDHANI CRAFTS [2017 (9) TMI 1942 - RAJASTHAN HIGH COURT] and not the date of decision of Final Order of CESTAT, the appeal before High Court of Rajasthan being the one filed by the Department. Hence, the findings of authority below are absolutely wrong. Otherwise also, the another apparent fact is that the order dated 30.06.2014 of adjusting the paid amount towards the sanctioned demand was passed during the pendency of the assessee’s appeal challenging the said demand before CESTAT and the demand stands set aside by CESTAT. Such act of the Department cannot be denied to be the coercive manner and since the payment was made pursuant to the direction of Departmental Authorities the same cannot be considered as voluntary payment and has to be treated as payment under protest. Section 11B proviso is clear enough to say that the limitation of one year shall not apply where any duty/interest on such duty has been paid under protest - the invoking of limitation issue is held to be absolutely unjustified on the part of authorities below. Appeal allowed - decided in favor of appellant.
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