Payment under protest during a pending appeal defeats refund limitation under Section 11B.

Duty recovered while the assessee's appeal before the Commissioner (Appeals) was pending was treated as payment under protest for refund purposes under Section 11B of the Central Excise Act. On that basis, the limitation bar for filing the refund claim did not apply, and the claim was held not time-barred. The reasoning followed cited case law, with no accepted factual or legal distinction to deny the protest character of the payment. The refund was therefore rightly allowed.

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Issues: Whether duty paid during the pendency of an appeal before the Commissioner (Appeals) is to be treated as payment under protest for the purpose of Section 11B, and consequently whether the refund claim is barred by limitation.

Analysis: The duty was recovered while the assessee's appeal against the adjudication order was pending. On that factual footing, the payment was treated as one made under protest for the purposes of Section 11B of the Central Excise Act. Once the payment is regarded as under protest, the limitation bar prescribed for refund claims does not apply. The issue was considered covered by the cited case law and no contrary distinction was accepted.

Conclusion: The refund claim was not time-barred and was rightly allowed.

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