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TMI Blog2017 (11) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent should have paid export duty on the entire FOB value and hence differential duty of Rs. 1,96,75,425/- would be required to be paid. Subsequent to issue of this notice, appellant paid the amount on 8.7.2008. The respondent thereupon preferred a refund claim on 28.8.2009, seeking refund of Rs. 39,35,925/- in view of the said circular dated 10.11.2008. Vide order dated 22.3.2011, the original authority rejected the refund claim as time barred. On appeal, Commissioner (Appeals) vide the impugned order dated 17.6.2013, held that the export duty paid during the relevant period should be treated as paid under protest and hence refund claim cannot be treated as time barred and held that the respondents are eligible for refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt paid. Hence the amount of Rs. 1,96,75,425/- deposited after issue of the show cause notice has not been appropriated by way of issue adjudication order. This being the case, the deposit of the said amount when not appropriated will require to be considered as an amount of deposit which has been paid under protest. In support of this, he relied upon the following case laws:- a. Commissioner of Central Excise, Coimbatore Vs. Pricol Ltd. - 2015 (320) ELT 703 (Mad.) b. Ebiz.com Pvt. Ltd. Vs. Commissioner of Central Excise - 2016 (49) STR 389 (All.) c. Commissioner of Central Excise, Madurai Vs. Servalakshmi Paper and Boards Pvt. Ltd. - 2011 (263) ELT 476 d. Commissioner of Customs Vs. Mahalaxmi Exports - 2010 (258) ELT 217 (Guj.) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of Board s Circular. 5.3 It cannot be denied that the facts leading to the filing of refund claim have occurred due to the change in stand of the department. In the first place, the Notification dated 13.6.2008 created a situation requiring issue of show cause notice for differential duty. Nonetheless, the Board Circular dated 10.11.2008 did a U turn in the existing practice and clarified that till 31.12.2008, the FOB price would be treated as cum-duty price. 5.4 We find that in an identical issue, in fact in a case also involving this very respondent was decided by the CESTAT, Bangalore Bench, in Final Order No.1071 to 1075/2010 dated 15.7.2010. The Tribunal in that case addressed the department s contention that the shipping bills ..... X X X X Extracts X X X X X X X X Extracts X X X X
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