TMI Blog2017 (2) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... f judicial indiscipline which must be curbed if the tax administration of the country is to mature. Tax administrators must be responsible and responsive. The claim for refund is reinstated with effect from the date that it was originally filed grant of refund by setting aside the impugned order of original authority and show cause notice for denial of refund claim. Appeal allowed. - E/2477/2005 - A/85313/17/SMB - Dated:- 14-9-2016 - Shri C J Mathew, Member (Technical) Ms. Padmavati Patil, Advocate for the appellant Shri Ajay Kumar, Jt. Commissioner (AR) for the respondent Order Dispute relates to applicability of limitation prescribed in section 11B of Central Excise Act, 1944 to claim for refund arising from order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for appellant and Learned Authorized Representative. It is the contention of the latter that the time-limit specified in section 11B of Central Excise Act, 1944 is binding all officers under the said Act and that this is the sole provision in law that enables sanction of refund. It is his contention that limitation ceases to have applicability only when duty has been paid under protest. Drawing attention to rule 233B of Central Excise Rules, it was pointed out that the procedure laid down therein had not been complied with and, hence, non-taxability of the law that payment of duty had been made under protest. 4. Learned Counsel cited a number of decisions, including that of the Tribunal in Steel Products Ltd v. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of recording protest. The submission made in the behalf devoid of any substance. The view taken by the Tribunal is in consonance with the law laid down by the Apex Court in the case of Mafatlal Industries Ltd (supra. The Apex Court in paragraph No 86 of the said judgement observed as under: 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. 6. Reading of the aforesaid paragraph makes it clear that filing of appeal is one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure that reliefs consequential to appellate resolution should also be governed by the same section is not the issue. The absence of a separate provision for processing of such refunds cannot be held to the detriment of an appellant whose contention is judicially sustained at the culmination of a long-drawn court battle. It is an axiom that appeals are deemed to be protest payments so that the existing framework for refund can be applied seamlessly. An application that is tendered in the form and manner prescribed in relation to section 11B ought to be lack of any other procedure does not necessarily have to conform to the entirety of section 11B when judicially ordered restitution is to be implemented. 7. The contention in the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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