TMI Blog2021 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under the order of Court, pending the appeal / reference/ writ petition, it will certainly be payment under protest - In such a case, it is obvious, it would not be necessary to lodge the protest as is otherwise provided under the Rules. Since the appellant has challenged the amount which got deposited by him during investigation, the protest is very much lodged on his part not as a party to such decision, the plea of limitation should not debar his claim. Section 11B of CEA makes it abundantly clear that it is the date of judgement as consequence whereof the amount became refundable. No doubt, the CESTAT s Final order in RAY BAN SUN OPTICS INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [ 2012 (12) TMI 260 - CESTAT, NEW D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said proposal was initially confirmed vide Order-in-Original No. 67/104 dated 21.10.2004. The appeal thereof was dismissed vide Order-in-Appeal dated 01.03.2005. When the said order was assailed before this Tribunal, vide Final Order No. A/380/2012-Ex(BR) dated 31.03.2012, the demand and penalty was set aside. Department filed an appeal before Hon ble High Court against the CESTAT order. However, vide order dated 21.04.2017, the department s appeal was dismissed due to monetary limit being less than ₹ 15 lakh. It is thereafter that the refund claim was filed on 19.02.2018 about the sum of ₹ 16,89,669/- as was deposited by the appellant vide TR 6 Challan dated 08.02.2003. However, vide Show cause notice No. 556 dated 13.04.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is the relevant date for the claim of refund order under challenge is accordingly prayed to be set aside and appeal is prayed to be allowed. 4. On the other hand, it is submitted on behalf of the department that the appellant became entitled for the impugned refund after the Final order of CESTAT dated 31.03.2012. Hence, the impugned refund would have been filed within one year thereof. The refund is filed in the year 2018 is substantially beyond the period of limitation. As such, no infirmity has been committed by Commissioner (Appeals) while passing the impugned order. Appeal is accordingly, prayed to be dismissed. 5. After hearing the parties and perusing the entire record, it is observed and held as follows: Apparently an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to mote controversy herein, since one year of limitation of refund, from the relevant date, definition thereof becomes important. Same is defined under section 11B itself. SECTION 11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an applica tion for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [six months] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] [Explanation. - For the purposes of this section, - (A) . (B) relevant date means, - (a) ... (i) ... (ii) ... (iii) .... (b) .... (c) .... (d) .... (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty (eb) .... (ec) .... 6. The aforesaid provision makes it abundantly clear that it is the date of judgement as conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
