TMI Blog2015 (8) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... t the revenue did not accept it as a clearance of duty liability and in accordance with law. The revenue therefore proceeded to raise a demand and issued four show cause notices. A reading of the show cause notices would reveal as to how the revenue proceeded to demand the sums set out therein and purported to adjust the payment already made by the assessee. Thus, the liability of the assessee was not crystallized according to the Revenue until this show cause cum demand notice was adjudicated. Demand was required to be adjudicated and was indeed adjudicated by the competent authority under the Central Excise Act, 1944, the order passed by him resulted in dropping of the proceedings and the demand. Therefore, once the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated consequent to an order of Additional Commissioner, favourable to the assessee and the same has been rejected on the ground of limitation inasmuch as duty was not paid under protest. It cannot be in view of the following provisions in paragraph 146 of the case of Mafatlal Industries Ltd. [1997 (89) E.L.T. 247] which states as follows : ...Alternatively, it may be stated that duty paid in cases, which finally ended in orders or declares or judgments of courts, must be deemed to have been paid under protest and the procedure and finalization etc. stated in Section 11B (2) read with Section 11B (3) will not apply to such cases.... Since the view is settled in favour of the appellant in appeal by ordering the withdrawal of Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal paper book. 4. The matter was then adjudicated by Additional Commissioner, Central Excise who passed an order on 31st October, 2000 dropping the demand and withdrawing the allegations in the show cause cum demand notice. A copy of his order is at Annexure-B and. It is dated 31st October, 2000. 5. On the basis of this order passed by the Additional Commissioner, Central Excise, the assessee filed refund claim that is contained in an application, copy of which is at Annexure-C. This application dated 22nd June, 2001 was heard and allowed by the Deputy Commissioner of Central Excise by order dated 8th June, 2001. 6. The Commissioner of Central Excise, Mumbai called for the record pertaining to this refund order, examined it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st but still refund is claimed, then, law postulates consideration of such claim for refund provided it is lodged within the time frame stipulated in the second proviso as prevalent at the time of consideration of the assessee s application for refund. Since the duty was not paid under protest the assessee was obliged to lodge this application within six months of payment. He cannot derive any advantage of a later adjudication to claim the refund. The findings of the Tribunal and relying upon paragraph 146 of the judgment of the nine Judge Bench of the Hon ble Supreme Court of India delivered in the case of Mafatlal Industries Ltd. v. Union of India are, thus, erroneous. That judgment is reported in 1997 (89) E.L.T. 247. Particularly, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been rightly allowed as it was well within the period of limitation. Hence, no substantial question of law would arise and particularly as framed by this Court. Consequently, the appeal is required to be dismissed. 9. With the assistance of the learned counsel appearing for parties, we have perused the appeal paper book as also the original record transmitted by the Registry of the Tribunal. It is true that the payment of duty was made by the assessee and that was in terms of the computation made by it. It was debited in the revenue account in November and December of 1997. It is true that this payment was not made under protest. Payment was made voluntarily but the revenue did not accept it as a clearance of duty liability and in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent as clearance of the liability to pay duty in accordance with law it issued show cause cum demand notice. That notice demanded the sums over and above the payment made by the assessee in November and December, 1997. That demand was required to be adjudicated and was indeed adjudicated by the competent authority under the Central Excise Act, 1944, the order passed by him resulted in dropping of the proceedings and the demand. Therefore, once the show cause notice was dropped the assessee in this case became entitled to seek refund. That such an application was maintainable and could have been granted, provided it was lodged within the period of limitation and as prevalent in terms of the applicable legal provision. At the relevant time, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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