Refund limitation under protest: contemporaneous evidence of non-voluntary payment kept the refund claim maintainable.

A refund claim under Section 11B of the Central Excise Act, 1944 was held not to be barred by limitation where the disputed service tax was paid under protest. The assessee relied on a board resolution, the timing of payment after the order-in-original, and the filing of the first appeal to show that the deposit was not voluntary. Binding jurisdictional precedent was applied to hold that payment under protest excludes the limitation bar, and that refund cannot be denied merely because the payment arose from a mistake of law. The refund claim was therefore maintainable with consequential relief according to law.

---

---

Issues: Whether the refund claim under Section 11B of the Central Excise Act, 1944 was barred by limitation, or whether the payment was made under protest so as to exclude the bar of limitation.

Analysis: The appellant produced a board resolution showing that the disputed service tax had been resolved to be paid under protest. The payment was made after the order-in-original and during the pendency of the first appeal, and the filing of appeal itself supported the conclusion that the payment was not voluntary in the relevant sense. Binding jurisdictional precedent held that where payment is made under protest, the limitation bar under the refund provision does not apply, and even payment made under mistake of law cannot be denied refund on limitation grounds. Non-jurisdictional decisions relied on by the Revenue were not preferred over the binding decisions of the jurisdictional High Court.

Conclusion: The refund claim was not barred by limitation and was maintainable.

Final Conclusion: The appeal succeeded and the assessee was held entitled to refund with consequential benefits according to law.

Ratio Decidendi: A refund claim under Section 11B of the Central Excise Act, 1944 is not hit by limitation where the duty or tax is found to have been paid under protest, including where the payment is evidenced by contemporaneous conduct showing a non-voluntary deposit.

---