TMI Blog2013 (5) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... aid under protest and therefore the time limit u/s 11B would not be applicable. He relies upon the decision of the Tribunal to submit that when the appellants make payments while challenging the demand that is to be treated as payment under protest. Held that:- Tribunal had considered the amended Section and since the refund claim in that case was filed within one year from the date of amendment, treated the same as a liberal consideration of provisions and decided that the refund claim should be allowed. Proviso introduced in 2007 is applicable in respect of past cases also and the only view or interpretation in favour of the appellant that can be taken is that from the date of amendment, refund claim should have been filed within one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/CI/EB dated 05.12.2005 allowed the appeal for Rs.19,984/- out of Rs.67,713/- and also reduced penalty to Rs.2,500/- from Rs.7,000/-. 2. On the strength of the order dated 05.12.2005 of CESTAT, the appellant had filed the refund claim on 11.12.2009 before the Lower Authority. 3. Proceedings were initiated to reject the refund claim on the ground that the same was filed beyond the time prescribed under Section 11B of the Central Excise Act 1944 which culminated in rejection of the claim. Hence the appeal. 4. The learned advocate on behalf of the appellant submits that the refund claim is for the amount deposited at the same time challenging the decision to reject the claim. He submits that the amount deposited has to be treated as one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 is not applicable to consequential refunds. Nevertheless, the decision in the case of Nahar Spinning Mills Ltd. was rendered before the provisions of Section 11B was amended. 6. Commissioner (Appeals) in the impugned order has relied upon the definition of 'relevant date' in Section 11B. In the definition of 'relevant date' given under Section 11B(5)(B)(ec), it has been provided: "In case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, the appellate tribunal or any court, the date of such judgment, decree, order or direction" would be relevant date". This provision was inserted by Section 117 of the Finance Act 2007. In this case, the cause of action namely the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Proviso introduced in 2007 is applicable in respect of past cases also and the only view or interpretation in favour of the appellant that can be taken is that from the date of amendment, refund claim should have been filed within one year ignoring the earlier period when according to the provisions existing at that time, there was no time limit for refund claim. In this case admittedly, the payment has not been made under protest. Treating the payment under protest when an appeal has been filed and consequently taking a view that there is no time limit for filing refund claim, was the position prior to amendment of Section-11B. Once proviso (ec) was inserted, the most liberal view that can be taken is the one that has been taken in Esso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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