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Issues: (i) Whether the refund claim was barred by limitation under Section 11B of the Central Excise Act, 1944 despite payment of duty under protest; (ii) Whether a buyer cum manufacturer entitled to concessional procurement could maintain a refund claim under Section 11B of the Central Excise Act, 1944.
Issue (i): Whether the refund claim was barred by limitation under Section 11B of the Central Excise Act, 1944 despite payment of duty under protest.
Analysis: Section 11B prescribes a six month limitation for refund applications, but the second proviso excludes its application where duty has been paid under protest. The contemporaneous letters and challan showed protest, the first appellate authority had recorded a categorical finding to that effect, and the Department had not challenged that finding. The filing of an appeal against the levy itself also supported the conclusion that payment was under protest. In such circumstances, the six month limitation did not apply. Even otherwise, the application was filed within a reasonable time, and the period spent in obtaining the order could also be excluded under Section 12 of the Limitation Act, 1963.
Conclusion: The refund claim was not barred by limitation, and the objection on delay failed in favour of the assessee.
Issue (ii): Whether a buyer cum manufacturer entitled to concessional procurement could maintain a refund claim under Section 11B of the Central Excise Act, 1944.
Analysis: Section 11B permits an application for refund by any person. The appellant was not a mere buyer in the ordinary sense but a manufacturer entitled to procure Naphtha at concessional duty against CT-2 certificates. Since the department denied the requisite certificate and the duty was deposited under protest, the appellant had locus to seek refund. The Tribunal's contrary view treated the claim on an unduly narrow footing and ignored the statutory width of Section 11B.
Conclusion: The appellant was entitled to maintain the refund claim, and the contrary finding was unsustainable.
Final Conclusion: The orders rejecting refund were set aside, and the appellant was held entitled to refund of the excise duty and interest.
Ratio Decidendi: Where duty is paid under protest, the six month limitation under Section 11B of the Central Excise Act, 1944 does not apply, and any person legally entitled to claim refund may maintain the application.
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