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Rejection of refund claim - time barred - Central Excise

#1 Issue Id: - 1731
Dated: 27-1-2010
By:- kiran kujur
Rejection of refund claim - time barred

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I have debited E.cess from the amount deposited under BED head of Account in 2007 . later in 2008,audit team objected and advised to deposit the duty amount afresh. accordingly i have deposited the said amount in E.Cess head of account and applied for refund of E.Cess payment made in 2007. The department rejected the refund application on ground of applicability of time bar u/s 11B of Central Excise Act, 1944. pl suggest me is it a case of refund of duty u/s 11B and is limitation of one year period is applicable. Relevant case laws may kindly be referred.

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#2 Dated: 29-1-2010
By:- Rama Krishana
As per the provision of cenvat credit rules, 2004, Eduction Cess can not be utilized to pay BED. But credit of BED can be utilized to pay E.Cess. Therefore, it appears your earlier action was not wrong. In that case, you should argue and file the refund claim citing both the deposit details and claiming refund of any one which department feel correct. In my view the claim of refund of second one is better.
#3 Dated: 29-1-2010
By:- kiran kujur
Sir, actually i have debited the said amount from account current and also deposited the amount objected by the departmental authority through TR-6 challan, so whole exercise is related to Account current/PLA. we are in need of a case laws reference to prove our case as refund of deposit and not refund of duty
#4 Dated: 29-1-2010
By:- Rama Krishana
I think you would not find any case law matching in toto with your case. I my view, you should take this matter as deposited under protest against the advise of audit team. The amount deposited under protest, if no show cause notice is issues, should be refunded.
#5 Dated: 1-3-2010
By:- rakesh chitkara
Mr. Rama Krishnan's logic is correct. Fact that you are seeking refund by itself denotes protest. Please file the claim, and ask them to issue an appealable order. Let us examine what the department's reasons for rejection are. Appeal process will have to be undergone by you. Let us take the plea that it was merely a deposit and not payment of tax / duty, as it hasn't been appropriated by the deptt. yet. Plea that not section 11 but the law of limitation of 3 years is applicable in this case should be advanced.

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