TMI Blog2022 (11) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... act that duty was paid under protest in case of INDIA CEMENTS LIMITED which is also true in the instant case and therefore, the arguments made by the learned counsel to distinguish the decision of tribunal in the case of INDIA CEMENTS LIMITED is not correct - Relying on the decision of larger bench in case of INDIA CEMENTS LIMITED, it is found that the appellants are not entitled to refund of the duty paid. Appeal dismissed. - Excise Appeal No.10196 of 2013 - Final Order No. A/11337/2022 - Dated:- 2-11-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri S. Suriyanarayanan, Advocate for the Appellant Shri G. Kirupanandan, Superintendent (AR) for the Respondent ORDER This appeal has been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on merit of the demand. He argued that in the said case, the demand was solely challenged on limitation whereas, the appellant had challenged both on limitation as well as on merits. He argued that the department cannot deprive right to get refund merely on the ground that the demand has not been set aside on merit but only on limitation. 03. Learned AR relies on the impugned order. He pointed out that the decision of larger bench of tribunal in the case of INDIA CEMENTS LIMITED is clearly applicable to the facts of the present case. He pointed out that the duty was paid under protest in the case of INDIA CEMENTS LIMITED as well which is like in the instant case. 04. We have considered the rival submissions. We find that the larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits. We find that this is not correct, in para 3 of the tribunal s order, it is apparent that the appellant only had challenged the demand on merits as well. Para 3 of the said order is reproduced below:- 3. The learned counsel for M/s. India Cements Ltd. argued before us that the lower authorities were wrong in their understanding of the law. If notification 198/76-CE was meant to exclude cement reprocessed and cleared under rule 96ZV, there would have been a specific provision to such effect. The factory crossed its base clearance on 17-2-79. The scheme was to encourage factories to produce more and more and to do this, duty concession was made on certain clearances. There was nothing anywhere that would allow an interpretation that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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