TMI Blog2021 (6) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 37C(1)(a) of the Act. In absence of proof of delivery, order dated 28.05.2012 cannot be deemed as served on the appellant, as has been held by the Hon ble Rajasthan High Court in the case of M/S RP CASTING PVT LTD VERSUS THE CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANR [ 2016 (6) TMI 996 - RAJASTHAN HIGH COURT] . The amount in question was collected by the Department without issue of show cause notice at the investigation stage, and further the appellant have contested the show cause notice, as well as, has been constantly in appeal pursuant to adjudication, and thus the amount in question is held to be deposited under protest ipso facto - Hon ble Madras High Court in the case of CCE, Coimbatore vs. Pricol Ltd. [ 2015 (3) TMI 735 - MADRAS HIGH COURT] has held that any amount deposited by pre-deposit or during the course of investigation, is definitely in the nature of deposit under protest . It is directed that the Adjudicating Authority to grant interest @ 12% per annum from the date of deposit till the date of refund - appeal allowed - decided in favor of appellant. - Excise Appeal No. 52074 of 2018-SM - FINAL ORDER NO. 51604/2021 - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d refund claim for ₹ 34,42,038/- (including penalty) on 03.02.2017. The refund sanctioning authority vide order-in-original No. R-27/2017-18 dated 02.05.2017 sanctioned the refund for ₹ 34,42,218/- to M/s Duggar Fibre Pvt. Limited, paid through RTGS. 3. Thereafter, Revenue filed appeal before Commissioner (Appeals) against refund order dated 02.05.2017 on the ground that the said refund was already time barred . The application for refund was filed after expiry of one year from the relevant date i.e. date of order-in-appeal. 3.1 Vide Order-in-appeal dated 10.04.2018, the learned Commissioner (Appeals) observing that the order-in-appeal dated 28.05.2012 was despatched through speed post to all the parties at their address, and none of the despatch envelop were returned back by the Postal Department. Accordingly, service on the parties was presumed and the claim was held to be barred by limitation. It was further observed that M/s Duggar Fibre Pvt. Limited vide letter dated 02.11.2016 requested the Commissioner (Appeals) for certified true copy of the order-in-appeal dated 28.05.2012. Further, the appellant has also claimed that the duty was deposited during in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done in that manner or not at all. 5. Thus, the Commissioner have erred in presuming delivery of the order-in-appeal dated 28.05.2012, only on the basis of evidence of despatch, in absence of proof of delivery. Further, the learned Commissioner (Appeals) also erred in not appreciating that the amount was deposited during investigation under protest, as the appellant has contested the show cause notice and thereafter contested the demand in appeal. Thus, in the facts of the case, limitation of one year under Section 11B (read with 2nd proviso) of the Act is not applicable, as the duty is admittedly deposited under protest. Further, reliance is placed on the ruling in Prince Khadi Woollen Handloom Producers Co-operative Indl. Society vs. CCE -1996 (88) ELT 637 (SC) wherein it has been observed - if the State, has wrongly collected the tax from a person, and even if there is no specific provision, still is liable to refund the tax alonwith interest 6. Further urges, the Commissioner (Appeals) have erred in observing that in absence of clear procedure of payment having been made under protest , presumption of such payment under protest cannot be taken as correct. 7. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use the transactions were not subject to levy at all. In these circumstances, the collection of duties was per se illegal. This Count, consequently holds on both, on that court as well as on the facts that the petitioners had lodged their protest during the pendency of the proceedings and before the adjudication order was made, the second proviso to Section 11B of the Act clearly apply. 13. For the above reason, the impugned order is hereby set aside. The concerned authorities are hereby directed to process the petitioner s refund claim and ensure that the amounts are remitted to it with applicable interest, in eight weeks. (emphasis supplied). Allowing the writ petition the Hon ble Delhi High Court directed the Department to process the refund claim and disburse the same with applicable interest. 8. Learned Counsel also urges that they are entitled to interest under the provision of Section 35FF from the date of deposit till the date of grant of refund, as the payment made by them was under protest and by way of pre-deposit. On this contention, he relies on the ruling in the case of Hitesh Industries E/50171/2019 F.O. dated 07.12.2020 (Tri. Del.) and J. K. Cement- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved on the appellant, as has been held by the Hon ble Rajasthan High Court in the case of R. P. Casting Pvt. Limited -2016 (344) ELT 168 and also Gujarat High Court in Regent Overseas Pvt. Limited vs. Union of India -2017 (6) GSTL (15) Guj., and also by the Hon ble Supreme court in Saral Wearcraft vs. CCE ST - 2015 (322) ELT 192 (SC). In absence of such proof of delivery, it is held that the presumption is not sustainable and accordingly I hold that the application of the appellant for refund cannot be held time barred. 12. Alternatively, I find that the amount in question was collected by the Department without issue of show cause notice at the investigation stage, and further the appellant have contested the show cause notice, as well as, has been constantly in appeal pursuant to adjudication, and thus the amount in question is held to be deposited under protest ipso facto. Further, I take notice that the Assistant Commissioner in order-in-original dated 02.05.2017 (refund order) have accepted the fact of payment under protest in para 11 of his order. Thus, it is held that the limitation of one year as prescribed under Section 11B (1) of the Act is not applicable in the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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