TMI Blog2017 (6) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs for the period 1991-92 were going on. Similar issue covered by the decision in the case of CCE, Chennai-II vs. Electro Steel Castings Limited [2013 (8) TMI 199 - MADRAS HIGH COURT] that payment of duty made only during the pendency of appeal against very levy of duty for the earlier period is deemed to be under protest and no limitation is applicable. Refund not hit by limitation bar - appeal allowed - decided in favor of appellant. - E/419/2007 - A/61117/2017-SM[BR] - Dated:- 31-5-2017 - Mr. Devender Singh, Member (Technical) For the Appellant: Shri J.P. Kaushik, Advocate For the Respondent : Shri Harvinder Singh,AR ORDER Per: Devender Singh The brief facts of the case are that M/s. Uttar Haryana Bij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim was filed, the proceedings in relation to earlier period of 1991-92 were still pending before the Tribunal and the same were decided by the Tribunal vide Order No.1071/99/A dated on 2.8.1999 in their favour. To substantiate this, he has produced the order 2.8.1999 of this Tribunal. He contended that as per judgement of the Hon ble Madras High Court in the case of CCE, Chennai-II Vs. Electro Steel Castings Limited - 2014 (299) ELT 305 (Mad.) that payment of duty made only during the pendency of appeal against very levy of duty for the earlier period is deemed to be under protest and no limitation is applicable. He also produced the copies of gate passes, invoices and RT-12 returns wherein the stamp of ED paid under protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgements of this Tribunal on the admissibility of such marking on the documents. However, the fact remains that litigation proceedings for the period 1991-92 were going on. As held by Hon ble Madras High Court in the case of CCE, Chennai-II Vs. Electro Steel Castings Limited (supra) that payment made when the assessee has been challenging earlier levy of duty is deemed to be under protest and not otherwise. In this context, the following has been held by the Hon ble Madras High Court: 7. Though it is sought to be contended on the side of the Revenue that the decision of the Supreme Court in the case cited above is more applicable to the case of the Revenue, we are not inclined to accept the same. The Apex Court in para 83 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified the products under sub-heading 2404.60. Whereas, the Revenue classified the products under sub-heading 2404.50. The CESTAT in the case of another assessee held the same product to be classifiable under the Heading 2404.60 and the same was accepted by the Tribunal in favour of the assessee. On the basis of such decision, the appellant filed the application for refund of the duty paid under protest. In the meanwhile, the assessee's own case involving same issue came to be decided on 28-8-2003 in favour of the assessee on the basis of the identical finding that the assessee's product would be classifiable under sub-heading 2404.60 and not under 2404.50. When the question to be determined whether the cause of action for refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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