TMI Blog2018 (1) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been held premature. The provisional assessment was finalized on 28.12.2006 and the instant claim was filed on 20.04.2007 which is well within the six months of the finalisation of the assessment, hence the claim cannot be considered to be time barred. Unjust enrichment - Held that: - the interest was paid by the appellant on their own and the same not being the part of the price of the goods, question of passing of incidence of the same does not arise - refund not hit by unjust enrichment. Appeal allowed. - Appeal No. E/906/08 - Final Order No. A/85023/2018-WZB - Dated:- 11-1-2018 - Shri Ramesh Nair, Member ( Judicial ) And Shri Raju, Member ( Technical ) Shri Anjali Hirawat, Advocate for Appellant Shri V.K. Agarwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the incidence of the amount for which the refund was claimed. Hence the present appeal before this Tribunal. 2. Ms. Anjali Hirawat, Ld. Counsel appearing for the Appellant submits that as per Rule 7(4) interest is payable only when the differential duty arising as a result of finalization of provisional assessment and if the same is not paid within one month of finalization. No interest is payable where the differential duty is paid prior to the finalization of the provisional assessment. Reliance is placed upon Tribunal order as reported in Ispat Industries Ltd 2007 (209) ELT 280 (TRI) upheld by the Hon ble Mumbai High Court in CCE, Nagpur Vs. Ispat Industries Ltd. 2010 (259) ELT 662 (Bom.) which was further upheld by the Hon ble Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation of six months from 28.12.2006 hence not hit by the time limit. Further, appellant vide letter 07.01.2004 had intimated the dept. that the payment of interest is made under protest. Further Payment of interest was also under protest as same was paid in terms of letter dated 19.01.2005 from Dy. Commissioner and since earlier payment of interest was also under protest. Consequently refund is not time barred. The amount being collected without the authority of law cannot be retained. 3. Shri V. K. Agarwal, Ld. Addl. Commissioner (A.R) appearing on behalf of revenue reiterates the findings in the impugned order. He further submitted that all refunds are covered under Section 11B. Refund was filed on 20.04.2007 i.e. after one year fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that as the interest was demanded in terms of Section 11AB therefore it cannot be excluded from the provisions of Section 11B as was held in case of CCE, Delhi III Vs. Northern Minerals Ltd. 2007 (216) ELT 198 (P H). Further we find that the Appellant vide their letter dt. 01.07.2004 had intimated the department that the interest shall be paid Under Protest. Also the Deputy Commissioner vide letter dt. 19.01.2005 asked the Appellants to pay interest pursuant to which the Appellant paid Interest. In such circumstances the payment of interest was clearly having been made Under Protest . 5. As regards the limitation, the refund has arisen only after finalization of assessment and before finalization of the assessment there was no g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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