9911796707
TMI Blog2008 (11) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... n of penalty on them un der Section 11AC of the Central Excise Act. After issue of the show cause notice the respondent paid the duty of Rs. 2,19,396/- on 10-12-03. The show cause notice was adjudicated by the Additional Commissioner vide order-in-original dated 29-12-03 by which he confirmed the duty demand of Rs. 2,19,396/- along with interest and beside this imposed penalty of Rs. 2,19,396/- on the respondent under Section 11AC. The Commissioner (Appeal), however, vide order-in-appeal dated 26-3-04 following Hon'ble Supreme Court's judgment in case of Aman Marble Industries Pvt. Ltd. v. CCE, Jaipur reported in 2003 (157) E.L.T. 393 (S.C.) = 2003 (58) RLT 595 (SC) held that the respondent's activity is not excisable and the marble slabs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder protest, the period of limitation would start from the date of final decision in the Assessee's own case. He pleaded that since the point of dispute in this case was decided in favour of the respondents, by the CCE (Appeals) vide order-in-appeal dated 26-3-04, the limitation would start period has to be pointed from this date and accordingly the revision claim would have been time-barred. 3. The learned counsel on behalf of the respondent pleaded that since in this case the duty had been paid under protest, the limitation period would not apply and in this regard he relied upon Hon'ble Supreme Court observations in para 146 of the judgment in case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.), w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India (supra) has held that when the duty has been paid under protest, the period of limitation would be start to run from the date of the final decision in the assessee's own case. In this case, the duty had been paid by the respondent, prior to the issue of the show cause notice but before the adjudication and subsequently the Additional Commissioner's order confirming demand, was challenged before CCE (Appeals). Even if the payment of duty prior to adjudication order passed by the Additional Commissioner is treated as payment under protest, the protest cases to exist once the Additional Commissioner's order was set aside and the issue was decided by the CCE (Appeals) in respondent's favour on 26-3-04. Therefore, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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