TMI Blog2017 (11) TMI 1486X X X X Extracts X X X X X X X X Extracts X X X X ..... no interest be given from the date writ petition was allowed to the date when the appellant made an application for refund that is 2009 - appeal allowed in part. - Central Excise Appeal No. 525 of 2012 - - - Dated:- 22-11-2017 - Hon'ble Bharati Sapru And Hon'ble Saumitra Dayal Singh, JJ. For the Appellant : Shakeel Ahmad For the Respondent : Anjana Singh ORDER Heard Sri Shakeel Ahmad, learned counsel for the appellant and Ms. Anjana Singh, learned counsel for the respondents. This appeal has been filed against the order of the Custom, Excise and Service Tax Appellate Tribunal dated 13.09.2011 by which the assessee's appeal for refund of certain duty amount claim to have been deposited under protest has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2005. Apparently, the assessee filed his refund application after four years in the year 2009. The claim for refund has been rejected by invoking the provisions of Section 11B of the Central Excise Act, 1944. For ready reference provisions of Section 11B(1) is quoted below:- Section [11B. Claim for refund of duty and interest, if any, paid on such duty] - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (89) ELT 247 (SC). Learned counsel for the assessee submits, that once the Tribunal had found that the disputed amount of duty was deposited under protest, the period of limitation stood waived in view of the second proviso to Section 11B(1) which is quoted above. Learned counsel for the respondents on the other hand submits that because the refund application was clearly made beyond time period of one year from the date of decision of the writ petition, the claim for refund of the year 2009 was wholly time barred. We find the Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India (supra) has held as below:- 83... The second proviso to Section 11B (as amended in 1991) expressly provides that the limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure 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... In view of specific finding recorded by the Tribunal that the duty amount has been deposited under protest, limitation of one year to make the claim of refund under Section 11B would not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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