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TMI Blog2018 (4) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellant has taken us to the order of Commissioner whereby while considering the case of the appellant, Commissioner (Appeals) has observed as under : "5. I have gone through the case record, submissions made by the appellant in appeal memorandum and at the time of personal hearing. I find that, the refund claim has been rejected on the ground of limitation. The fact that the amount was paid through PLA as well as CENVAT Credit account is not under dispute. The appellant has first deposited the Rs. 400000/- through TR-6 challan in PLA, while making such they mentioned "under protest" and while making debit entry for Rs. 353171/- they have not mentioned "under protest", therefore the debit made in PLA was not treated as debit under protest. In this regard, I find that merely on the ground that while making debit entry in PLA, the Appellant has not mentioned the words "under protest" and without considering the fact that while making deposit through TR-6, they mentioned "under protest", denial of refund claim on ground of limitation is not sustainable. The Adjudicating Authority has not given any specific finding as to why the deposit through TR-6 challan under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot disputed by the respondents that there were defaults in payments of duty during certain period and there was debarment order issued by the competent authority in pursuance of powers vested under the Central Excise Rules. It is also not disputed by the respondents that they have not filed any appeal against this order, though the same was appealable. It appears that the decision of Larger Bench of the Tribunal involved a case where there was no specific order of debarment which has not been followed by the assessee. We further find that the debarment order has been issued validity debarring them using the credit for two months. By implication, the credit barred from utilization was available after two months and therefore matter requires regularization. Therefore, the respondents are directed to pay the interest as demanded in the order of the original authority. The demand of duty equivalent to credit which was debarred by two months and allowed to be utilized thereafter will amount to double payment. We therefore restore the order of the original authority insofar as it related to demand of interest for two months only. 7. Regarding the second appeal challenging the allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. 17. The case of India Cements Ltd. (supra) was, of course, decided before Mafatlal Industries' case and related to the then applicable Rule 11 of the Rules of 1944 but, had been a case where the claim of refund was similarly rejected on the ground of being barred by time. Therein, the duty was paid for the period 4-7-1974 to 1-3-1975. There had been a communication dated 11-6-1974 from the assessee raising objection that duty on packing charges of superfine cement was not leviable. The Hon'ble Court held that the letter raising all possible contentions against the levy in question was in the nature of protest. The relevant part of the observations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion Rule 233B cannot control the full effect of the proviso to Section 11B(1). A rule made under the Act cannot limit a provision in the Act itself. It is well settled that a rule made under an Act will not be valid if it conflicts with or is in derogation to a section in the Act vide [C.I.T. v. S. Chinappa Mudaliar, MANU/SC/0197/1969 : AIR 1969 SC 1068]. Hence, a rule should not be construed in a manner that it conflicts with a Section of the Act." 2. Lloyds Steel Industries Ltd. v. Union of India, 2009 (246) E.L.T. 114 (Bom.), wherein it has been observed as under :- "8. Learned Senior Counsel Shri Bhangde submitted that in view of law laid down in the above referred decisions, even during the period of two months for which facility of payment of Central Excise duty on fortnightly basis was withdrawn, the assessee was entitled to use CENVAT credit for payment of Central Excise duty on clearance of excisable goods from its factory and, therefore it is payed that petition may be allowed by making rule absolute in terms of prayer clause (1). 10. We have considered the contentions of the learned respective Counsel for the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1991) expressly provides that "the limitation of six months shall not apply where any duty has been paid under protest". Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11B along with the definition of "relevant date", there is no room for any apprehension of the kind expressed by the learned Counsel. 84. It was then submitted that Rule 233B which prescribes the procedure to be followed in cases where duty is paid under protest requires the assessee to state the grounds for payment of duty under protest and that it may well happen that the authority to whom the letter of protest is submitted may refuse to record it, if he is not satisfied with the grounds of protest. In our opinion, the said apprehension is not well-founded. sub-rules (1), (2) and (3) of Rule 233B read as follows : "Rule 233B. Procedure to be followed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn and the assessee was directed to pay duty on each consignment basis. Admittedly, the assessee has not challenged the said order dated 4-12-2002 and in gross violation of the aforesaid order continued to pay excise duty on fortnightly basis by debiting the Cenvat Credit in the RG 23 and PLA accounts. The cases relied upon by the counsel for the assessee are distinguishable on facts. In all those cases, the order withdrawing the facility of paying duty on fortnightly basis was challenged and in the meantime clearances were effected by paying duty on each consignment basis by debiting the Cenvat credit balance in the respective accounts maintained by the assessee. In the present case, the assessee has neither challenged the order withdrawing the facility to pay duty on fortnightly basis nor paid duty on each consignment basis. Thus, the decisions relied upon by the counsel for the assessee do not support the case of the assessee. 7. In these circumstances, no fault can be found with the decision of the Tribunal in confirming the orders passed by the authorities below." 7. Counsel for the respondent has relied upon case of Elson Packaging Industries Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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