TMI Blog2015 (12) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the appellant was barred by limitation, is patently erroneous. - judgment of the Tribunal was delivered on 22.01.1999. The application was filed on 31.08.1999 within a period of seven months which, in our opinion, is a reasonable period. The application for refund does not become barred by time. Tribunal committed a manifest error in non-suiting the appellant's claim on the sole ground that the appellant was only a buyer and, therefore, was not entitled to claim a refund of the duty. This finding is patently perverse. Section 11-B of the Act provides that any person can make an application for refund of duty. Further, in the instant case, the appellant is not only a purchaser but is also a manufacturer of fertilizer and was entitled to purchase Naphtha under the notification issued under the Central Excise Act, 1944 at a concessional rate of duty. Since, the appellant was denied the requisite forms/ certificate and deposited the duty under protest, he was entitled to claim a refund. - Impugned order is set aside - Decided in favour of assessee. - Central Excise Appeal Defective No. - 142 of 2010 - - - Dated:- 19-11-2015 - Hon'ble Tarun Agarwala And Hon'ble Vin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by time. The First Appellate Authority held, that the Tribunal's order dated 22.01.1999 was dictated in open Court and, therefore, the appellant was aware of the order from that date itself. The period of limitation would run from 22.01.1999 which had expired as the application was filed on 21.08.1999 after the period of six months and, therefore, the claim was barred by time. The appellant, being aggrieved, thereafter, preferred a second appeal before the Tribunal which was rejected on the ground of limitation. The Tribunal, however, came up with a new ground contending that since the appellant was a buyer, he was not entitled to apply for refund under Section 11-B of the Act. The appellant, being aggrieved, has filed the present appeal which was admitted on the following substantial questions of law:- (1) Whether in view of the Constitution Bench decision of Hon'ble the Supreme Court of India in the case of Mafatlal Industries Limited vs. Union of India, reported in (1997) Vol. 89 E.L.T. page 247 (para 83) since the appellant was contesting the liability for payment of excise duty on the use of Naphtha by way of appeal and the appellants having been compelled to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Mafatlal Industries Limited vs. Union of India, (1997) Vol. 89 E.L.T. Page 247, held : 83. It is then pointed out by the learned Counsel for the petitioners-appellant that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression relevant date has been defined in Clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under Clauses (a), (b), (c), (d) and (e) of the said Explantion. It is submitted that Clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellat/ revision proceedings, or for that matter proceedings in High Court/ Supreme Court, take a number of years and by the time the claimant succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We think that the entire edifice of this argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty has been paid under protest. A reading of the rule shows that the procedure proscribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/ reference/ writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B. From the aforesaid, it is apparently clear that the deposit made by the appellant was made under protest. Once the deposit of duty was made under protest, the second proviso of Section 11-B of the Act comes into operation, namely, that the period of limitation of six months would not apply to a claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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