Protest and refund limitation in Cenvat credit reversals: substantial compliance saved one claim, but a separate reversal stayed time-barred.

Refund limitation on Cenvat credit reversals turned on whether protest was validly communicated under Rule 233B. Where protest letters were couriered to the jurisdictional Assistant Commissioner and the departmental record did not deny receipt, the requirement was treated as substantially complied with, so the refund claim for the reversals covered by Sl. Nos. 2 to 4 was not time-barred. By contrast, an appeal pending for an earlier and different period did not amount to protest for the later reversal of Rs. 27,647 made on 31-3-02, so that claim remained barred by limitation.

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Issues: (i) Whether the reversals of Cenvat credit for the items covered by Sl. Nos. 2 to 4 were made under protest in substantial compliance with Rule 233B of the Central Excise Rules, 1944, so as to keep the corresponding refund claim outside limitation; (ii) whether pendency of an appeal relating to an earlier and different period could be treated as protest for the reversal of credit of Rs. 27,647/- made on 31-3-02.

Issue (i): Whether the reversals of Cenvat credit for the items covered by Sl. Nos. 2 to 4 were made under protest in substantial compliance with Rule 233B of the Central Excise Rules, 1944, so as to keep the corresponding refund claim outside limitation.

Analysis: The letters of protest were stated to have been couriered to the jurisdictional Assistant Commissioner and that fact was not denied in the appellate order. The absence of a formal acknowledgement by the department could not be used to prejudice the assessee where the protest had in substance been communicated. The procedural requirement was therefore held to have been substantially complied with.

Conclusion: The protest was validly registered in substantial compliance with Rule 233B, and the refund claim corresponding to Sl. Nos. 2 to 4 was not barred by limitation.

Issue (ii): Whether pendency of an appeal relating to an earlier and different period could be treated as protest for the reversal of credit of Rs. 27,647/- made on 31-3-02.

Analysis: The concept of payment under protest pending appeal requires that the appeal be pending in relation to the same period as the payment for which refund is sought. An appeal concerning a different and irrelevant period does not satisfy that requirement, and no separate protest was shown for this reversal.

Conclusion: The claim for refund of Rs. 27,647/- was not protected by protest and remained time-barred.

Final Conclusion: The refund claim was allowed for the reversals covered by Sl. Nos. 2 to 4, but the claim relating to Rs. 27,647/- was excluded from relief.

Ratio Decidendi: A refund claim is saved from limitation where protest is substantially communicated in accordance with the governing procedure, but pendency of an appeal concerning a different period does not amount to protest for a later payment.

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