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Bharat Heavy Electricals Ltd. Versus Commissioner of Central Excise Customs And Service Tax Hyderabad-I

2015 (10) TMI 1191 - CESTAT BANGALORE

Claim of refund - deemed fiction of duty paid under protest - period of limitation - Exemption under Notification No. 108/95-CE - Partial refund allowed - Balance refund rejected as barred by limitation - Held that:- Admittedly the refund of ₹ 14.25 lakhs (Rupees Fourteen Lakhs Twenty Five Thousand approximately) stands filed by the appellant beyond the normal period of limitation. It is also factually correct that no protest was lost either by M/s. CST or by the appellant for the said per .....

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uty paid during the subsequent period should be deemed to be having been paid under protest cannot be appreciated as there is a specific procedure to be followed for paying the duty under protest. The appellant having not followed that procedure, the deemed fiction cannot be adopted merely because the earlier order was the subject matter of appeal before the Tribunal. As such I find no infirmity in the views of the lower authorities - Decided against assessee. - E/1114/2009-SM - Dated:- 29-5-201 .....

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e heard learned DR and have gone through the impugned order. 3. The appellants were receiving Welded Austenitic Stainless Steel Tubes from M/s. CST Ltd., which had claimed the exemption under Notification No. 108/95-CE for such supplies to the appellant. The said exemption availed by the supplier was denied to them by way of an adjudication order, which was appealed by them before Tribunal. The Tribunal decided the appeal in favour of M/s. CST Ltd. vide its Final Order dated 04.02.2008 holding t .....

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asis of a disclaimer certificate in favour of the appellant. 5. The lower authorities allowed the refund of ₹ 50,26,495/- (Rupees Fifty Lakhs Twenty Six Thousand Four Hundred and Ninety Five only) and rejected the balance amount of ₹ 14,25,714/- (Rupees Fourteen Lakhs Twenty Five Thousand Seven Hundred and Fourteen only) as barred by limitation. 6. On an appeal against the above order, Commissioner (Appeals) upheld the order of the original adjudicating authority by observing as unde .....

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. The CESTAT's order can be relevant only in respect of the period covered within the aforesaid Order-in-Original passed by the Commissioner which have been set aside. For payment of duty pending disposal of the appeal and eligibility to the exemption under Notification No. 108/95-CE, it was necessary for M/s. CST Limited to lodge the claim of protest for payment of duty and in the absence of such explicit claim of protest on record, the time period prescribed under Section 11B with referenc .....

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