TMI Blog2018 (4) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... wed - decided in favor of assessee. - D.B. Central Excise Appeal No. 2 of 2012 - - - Dated:- 1-11-2017 - K.S. Jhaveri and Vijay Kumar Vyas, JJ. Shri Sarvesh Jain, for the Appellant. Shri Siddharth Ranka, for the Respondent. ORDER By way of this appeal, the appellant has challenged the judgment and order of the Customs, Excise Service Tax Appellate Tribunal whereby the Tribunal has reversed the view taken by the Commissioner (Appeals) and allowed the appeal of the department. 2. This Court while admitting the appeal on 8-11-2016, framed following substantial questions of law :- (3.1) Whether the learned CESTAT was correct and justified in ignoring that the amount of ₹ 3,53,171/- besides having paid through PLA was also debited from CENVAT credit? (3.2) Whether the learned CESTAT was justified and correct in holding that the payment of the same duty paid out of PLA from the payment of ₹ 4 lac per treasury challan TR-6 under protest is without any indicate of protest from PLA extract. 3. Counsel for the appellant has taken us to the order of Commissioner whereby while considering the case of the appellant, Commissioner (Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, oversight while depositing the same amount while exercising their CENVAT Credit on 26-4-2001 with protest was not written, reads as under : Date and Sr. No. of entry Particulars of Credit/Debit document Basic Excise Duty Credit Debit Balance 6(i) 6(ii) 6(iii) 10 of 26-4-2001 To Invoice 865 59887 11 of 26-4-2001 To Invoice 866 65022 12 of 26-4-2001 To Invoice 867 57277 13 of 26-4-2001 To Invoice 868 60127 14 of 26-4-2001 To Invoice 869 62169 15 of 26-4-2001 To Invoice 870 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount of ₹ 3,53,171/- on 24-6-2001. Further, we find that original authority has taken the stand that ₹ 3,53,171/- was not paid under protest and there is no indication of protest from the PLA extracts. Therefore, the order of the Commissioner (Appeals) sanctioning the refund on the ground that there was double payment is erroneous. The order of the Commissioner (Appeals) cannot be sustained and the same is set aside and the order of the original authority is restored. 5. Counsel for the appellant has relied upon decisions in cases of : 1. Shree Shyam Filaments v. Commissioner of Central Excise, Jaipur, 2014 (303) E.L.T. 195 (Raj.), wherein it has been observed as under :- 16. In Mafatlal Industries case (supra), after taking note of the contentions in regard to this Rule 233B, the Constitution Bench laid down the law in the following :- 85. The rule no doubt requires the assessee to mention the grounds for payment of the duty under protest but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges. 10. We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty. 18. In ITC Ltd. (supra), the Hon ble Madras High Court took note of the observations of the Hon ble Supreme Court in Mafatlal Industries and said, The observation in the said paragraph any person paying the duty under protest has to follow the procedure prescribed by the rule does not mean that Rule 233B could be construed in a narrow, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise duty on the clearance of final products for the relevant period. 3. Indian Farmers Fertilisers Co-op. Ltd. v. Commr. (K-II) Central Excise, 2016 (331) E.L.T. 386 (All.), wherein it has been observed as under :- 7. A constitutional Bench of the Supreme Court in Mafatlal Industries Limited v. Union of India, MANU/SC/1203/1997 : (1997) Vol. 89 E.L.T. page 247, held : 83. It is then pointed out by the learned Counsel for the petitioners-appellant that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression relevant date has been defined in Clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under Clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that Clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter to protest when delivered to him - and that a acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure proscribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure 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. 6. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per se does not take away or affect the right of the appellant assessee to Cenvat credit which may be available to him in accordance with Cenvat Credit Scheme and there is no conflict between the rules commencing from Rules 57A to 57V of the Cenvat Credit Scheme and Rule 173G of the Rules. 8. We have heard counsel for both the parties. 9. From the record it is very clear that pursuant to the order passed by the authority suspending CENVAT Credit on 19-2-2001 (Annexure-4) was period of two months. 10. In that view of the matter, the amount of ₹ 400000/- which was deposited vide TR-6 Challan (Annexure-5), there cannot be two duplex of payment of tax. The limitation period would start not from the date of deposit but from the date of the decision by Commissioner (Appeals) which was decided on 21-4-2006 (Annexure-3). 11. In that view of the matter, we are of the considered opinion that even on limitation, the appellant has good case. The appellant will be given CENVAT Credit and if the application is made, immediately effect will be given. 12. Therefore, issue is answered in favour of the assessee. 13. The appeal is allowed. - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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