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TMI Blog2013 (1) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 5,41,805/- on 28.10.99 in respect of cenvated inputs contained in wool waste/used in manufacturer of wool waste and similarly reversed Cenvat Credit of Rs. 2,02,132/- on 28th & 29th December 1999 in respect of clearances of wool waste. This reversal of Cenvat Credit in respect of clearances of wool waste was without filing any protest, though the appellant claim that they had done so on the advice and instructions of the jurisdictional Central Excise Officers. Subsequently realizing that they were not required to reverse this credit in respect of clearances of wool waste, the appellant filed a refund claim for an amount of Rs.5,41,805/- on 20.12.2000 and since it was incomplete, revised claim complete with documents was filed on 15.03.01. Similarly they filed refund claim for the amount of Rs. 2,02,132/- on 15.01.01 and since it was incomplete, they filed revised and complete claim on 15.03.01. The refund claims were rejected by the Jurisdiction Assistant Commissioner vide order dtd. 31.08.01. On appeals being filed before the Commissioner of Central Excise(Appeals),he by an order-in-appeal dtd. 27.10.04 allowed the refund claim of Rs. 2,45,885/- and rejected the clause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the credit has to be treated as under protest and, therefore, the limitation period prescribed under section 11B would not apply, that in this regard she relies upon the judgment of the Tribunal in the cases of Opel Alloys Pvt. Ltd. Vs. Commissioner of Central Excise, reported in 2010 (249) E.L.T. 408, Laxmi Board & Papers Mills Ltd. Vs. Commissioner of Central Excise, Mumbai, reported in 2007 (208) E.L.T. 384 and Commissioner of Customs (Airport), Chennai Vs. Atlas Granites, reported in 2004 (173) E.L.T.25, wherein it was held that the amount deposited towards the duty during investigation on the directions of the Department has to be treated as paid under protest and hence the limitation period under section 11B for its refund would not be applicable, that in any case, in view of the judgment of Hon ble Allahabad High Court in the case of Commissioner of Central Excise Vs. Ram Swarup Electricals Ltd. (Supra), the limitation period prescribed under section 11B is not applicable for the refund of Cenvat Credit wrongly reversed and that in view of this, the impugned order is not correct. 3. Sh. B.B.Sharma,the learned departmental representative, defended the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit of Rs. 2,12,132/- had been made on 28th & 29th December 1999. While the refund claim for the first amount of Rs. 5,41,805/- had been filed on 22.12.2000, the refund claim for the second amount of Rs. 2,21,132/- had been filed on 15.01.2001 and in both the cases, the complete and revised claims with all the documents had been filed on 15.02.01. Thus, If it is held that the claim for refund of wrongly reversed Cenvat Credit/Modvat Credit is subject to the limitation period prescribed under section 11B and the limitation period is counted from the date of reversal, both the refund claims would be time barred. However, according to the appellant, for refund of wrongly reversed Cenvat Credit, limitation period under section 11B is not applicable, while according to the Department, for refund or re-credit of wrongly reversed Cenvat Credit, the claim had to be filed under section 11B, and all the provisions of section 11B are applicable. 6. On going through the judgment of Hon ble High Court in the case of Ram Swarup Electricals Ltd. (Supra), cited by the appellant, the points decided by Hon ble High Court,as mentioned in first Para of the Judgment are as under:- 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit is nothing but a constituent of duty. In view of this, I hold that the refund/re-credit of the wrongly reversed Cenvat Credit would be subject to the provisions of Section 11B and the limitation period prescribed in Section 11B would be applicable for filing the refund claim for Modvat Credit. 7. The question, now, arises as to what would be the relevant date from which the limitation period has to be counted. I find Hon ble High Court in Para 33 of the judgment in the case of Indo-Nippon Chemicals Co. Ltd.(Supra), has held that when reversal of Modvat Credit was on insistence of Department and subsequently the reversal was found to be wrong, the provisions of Section 17 of Limitation Act. would be applicable and limitation period would run from the date on which the mistake was discovered by the appellant. However, for applying the above ruling of Hon ble High Court, it has to be ascertained as to whether the reversal was on the insistence or instructions of the Departmental Officers. On this point there is dispute, as while the Department claims that the reversal in both the cases had been made by the appellant on their own without any instructions in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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