TMI Blog2022 (11) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, in the present case a protest cannot be made on the invoice or bill of entry as is usually done. It is a case of making payment by reversal of credit in their CENVAT account. The only method by which the appellant could intimate or inform their protest is by issuing a letter to the department that they are paying the amount are disputing the payment made. The demand having been dropped by the department, the consequence would be that the appellant would be eligible for refund of the credit that has already been reversed. It clearly shows that the issue was under litigation which is indication of protest / disagreement. The factual matrix would be that the issue was in dispute and the appellant was disputing the amount alleged to be payable by them. The letters issued by the appellant every month intimating the reversal as well as reserving their right for litigation would show that the credit has been reversed under protest. The allegation that the refund claim is hit by time-bar cannot sustain and requires to be set aside - Appeal allowed. - Excise Appeal No.40897 of 2015 - Final Order No. 40353/2022 - Dated:- 4-11-2022 - Ms. Sulekha Beevi C.S., Member (Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enclosed with the appeal memorandum. He stated that in such intimation, the appellant had informed the department that the reversal is made by them only by abundant caution and they reserve their rights to go in appeal in case of need. The department did not consider this letter as a mark of protest. It is argued by the learned counsel that such intimation makes that the credit has been reversed under protest. Therefore, the limitation envisaged under sec. 11B of the Central Excise Act, 1944 will not apply. 3. The department has calculated the period of one year from the date of reversal of the credit up to the date of filing the refund claim and held that the refund claim is time-barred. When the credit has been reversed under protest, there is no limitation applicable to the refund claim. It is also pointed out by the learned counsel that the department had issued a Show Cause Notice demanding the amount of wrongly availed credit in regard to common inputs and input services used for exempted goods in the nature of bagasse and press mud. The said Show Cause Notice is dated 21.10.2015. The issuance of Show Cause Notice itself would prove that the reversal of credit was disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt date and therefore barred by limitation. He prayed that the appeal may be dismissed. 7. Heard both sides. 8. The issue is whether refund claim filed by the appellant dated 19.9.2014 is hit by limitation as envisaged under sec. 11B of the Central Excise Act. 9. On perusal of records, it is seen that the appellant has reversed the credit for the period 1.4.2010 to 1.5.2013 and refund claim has also been filed for this period. The department has calculated the period of one year from the date of reversal and taken the view that the refund claim is barred by limitation. It is to be noted that the appellant had reversed the credit and intimated the department by issuing letters on various dates. In the letter dated 3.5.2010, it is noted by the appellant as under:- Please note that the above reversal is being done without prejudice to our right to go for appeal in case of need . The letter is seen received by the department and the endorsement made by the Superintendent is as under:- Procedure prescribed under sub-rule (3A) of Rule 6 of the CENVAT Credit Rules, 2004 is to be followed in advance. Whereas in this case your unit seems to have followed the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atrix would be that the issue was in dispute and the appellant was disputing the amount alleged to be payable by them. The letters issued by the appellant every month intimating the reversal as well as reserving their right for litigation would show that the credit has been reversed under protest. 12. The learned counsel has relied upon the decision in the case of Triveni Engineering and Industries Ltd. (supra). The relevant paragraphs is as under:- 3. In order to avoid, further litigation and to also avoid the liability of interest by way of abundant caution, the appellant started reversing Cenvat credit under Rule 6(3) of CCR, 2004 upon clearance of Bagasse/Press Mud since April, 2010. This reversal was being made by them under protest, which is evident as they were contesting the issue before the appellate authority and also filed periodical refunds to this effect of the deposit/reversal of duty under protest. 4. After being successful before this Tribunal, as referred to hereinabove. The appellant filed refund claim on 13-6-2013 for the period April, 2010 to August, 2012. Thereafter, a show cause notice dated 6-9-2013 was issued proposing to reject the claim on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Bagasse is not a manufacture item and hence not dutiable and does not attract Rule 6(3) of CCR, 2004. The Learned Counsel also states that under such facts and circumstances, the revenue should have suo-motu refunded the amount paid by them on clearance of Bagasse under the provisions of Rule 6(3) of CCR, 2004. Further, there is no question of any limitation being attracted. The Learned Counsel said that the courts below have erred in holding that limitation starts from the date of judgment in their appeal for earlier period, before the Tribunal being judgment dated 8-6-2012. 13. Similar issue was analyzed in the case of Nasik SSK Ltd. (supra), wherein the Tribunal observed as under:- 4. I have carefully considered the submissions made by the learned AR and perused the records. I find that this is a case of refund of an amount equal to 5%/6% paid/reversed by the respondents in terms of Rule 6(3) of Cenvat Credit Rules, 2004. There is no dispute that this amount does not represent excise duty. If this amount is not liable to be reversed, the same can be allowed as re-credit similarly in the manner as the Cenvat credit is allowed at the time of receipt of input/input ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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