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TMI Blog2019 (6) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had reversed credit of Rs. 98,10,988/- on 23.03.2007 due to ongoing controversy that credit in respect of inputs used in manufacture of goods exported under DFIA Scheme is not available. The Appellant informed their jurisdictional Assistant Commissioner that they are reversing the credit of said amount and they reserve their right to claim back the credit so reversed if the reversal is not warranted. Subsequently the legal position became clear to the Appellant and they filed refund claim of said amount. The Assistant Commissioner held that cenvat credit was not available to the Appellant as well as the claim having been filed after one year of the debit entry is also hit by limitation of time bar in terms of section 11B of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials imported/ procured against the said authorization has not been availed. That various proceedings against the different assessees were being carried out by the department seeking reversal of credit in respect of inputs used in manufacture of goods exported under DFIA and therefore as per their understanding of law they reversed credit of inputs procured indigenously and they intimated the same to the Assistant Commissioner. He also stated that they reserve their right to claim back the credit so reversed. Subsequently the legal position became clear to them and they applied for credit. The mentioning of "reserving their right to claim credit", itself shows that the credit was reversed "Under Protest". He places reliance on Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would have been recovered and other penal consequences would have followed. But here the Appellant themselves debited the amount with reserving their right to claim re-credit of the same. This explicit condition stated by the Appellant in their letter is nothing but expression of reversal having been made "Under Protest". Only for the reason that the words "Under Protest" is not appearing in the letter, it cannot be construed that the reversal was not under protest. The protest may be in any form and any contest made while reversing or paying duty has to be considered as mark of protest. The Appellate authority has placed reliance on Tribunal's order in case of BDH Industries Ltd. 2008 (229) ELT 364 (TRI). However we find that in the ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Central Excise Act or Rules framed there under. In case of Delhi Bottling Co. Pvt. Ltd 1995 (76) ELT 635 (TRI), the tribunal has held that letter of assessee clearly indicating entitlement to benefit of Notification No. 30/72 and duty to avoid official displeasure amounts to protest. We find that the same are the circumstances in the case in hand and therefore the letter of the Appellant has to be construed as intimation of payment "Under Protest". The revenue has relied upon the Tribunal order in case of Pearl Polymers Ltd. 2004 (174) ELT 41 (TRI) as upheld by the Apex Court in 2008 (225) ELT A59. We however find that the facts are different. In the present case the Appellant had reversed credit as the similar asessees were facing iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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