TMI Blog2009 (10) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The appellant is entitled to the refund. order passed by the Commissioner (Appeals) is set aside. The appeal filed by the appellant is allowed - E/983/2008 - A/566/2009-WZB/C-IV/SMB - Dated:- 7-10-2009 - Shri A.K. Srivastava, J. Shri M.S. Jagesha, Advocate, for the Appellant. Shri S.M. Vaidya, JDR, for the Respondent. [Order]. The appellant, M/s. Star Coolers Condensers Pvt. Ltd., is a manufacturer of excisable goods falling under CH. 84 of the C.E. Tariff Act, 1985. During the period from June, 2002 to Nov., 2003. the appellant issued debit notes worth Rs. 1,91,506/- to some customers. During their visit on 23-12-2003, the preventive officers noticed the debit notes. They alleged that the debit notes were for col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the S.C.N, dated 16-2-2005, which has been dropped by the Assistant Commissioner under his O.I.O. No. 123/07 dated 22-11-2007. 2. Heard both the sides and perused the records. 3. It is seen that the adjudicating authority and also the appellate authority have rejected refund of Rs. 24,308/- on the ground that the amount is not paid under protest; and hence the claim for refund is barred by time limitation under Section 11B of the Central Excise Act, 1944. 3.1 It is an undisputed fact that the appellant has paid the amount of Rs. 24,308/- on 23-12-2003, during investigation at the time of visit to their factory by the preventive officers on their directions. The concerned S.C.N. was issued on 16-2-2005. The appellant challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or thereafter. This shows that although the protest was not specifically recorded at the time of payment of duty at the time of the visit of the preventive officers to their factory on 23-12-2003 yet the fact remains that the duty was paid on the directions of the preventive officers. Such payment cannot be considered due to the own volition by the appellant. The very fact that the appellant contested the demand indicates that the payment made by them was involuntary and was forced upon them by the preventive officers. 5.1 The Hon ble Supreme Court, in the case of M/s. Mafatlal Industries reported in 1997 (89) E.L.T. 247 (S.C.) has observed as under : The second proviso to Section 11B (as amended in 1991) expressly provides that the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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