Appellant Entitled to Excise Duty Refund; Section 11B Limitation Not Applicable for Payments Made Under Protest

The Tribunal held that the appellant is entitled to a refund of the excise duty paid under protest, as the limitation under section 11B does not apply in such circumstances. The Tribunal found that the payment was made under protest, supported by documentation, and that the department's pending appeal to the SC does not prevent the refund. Consequently, the Tribunal set aside the impugned order and allowed the appeal, granting the refund to the appellant.

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Issues involved: Whether the refund claim filed by the appellant is barred by limitation when the excise duty was paid under protest.

Summary:
The appellant collected an amount under other charges on warehouse goods without paying excise duty. After paying Rs. 93,36,942 under protest based on an audit objection, they filed a refund claim following a favorable CESTAT decision in another case. The refund claim was rejected by the Assistant Commissioner, citing a pending challenge by the department in the Supreme Court. The appellant filed an appeal before the Commissioner (Appeals) which was upheld, leading to the present appeal.

The appellant argued that the payment was made voluntarily but under protest at the department's insistence, making the limitation under section 11B inapplicable. They cited various judgments in support of their case, including a previous Tribunal order in their favor. The revenue representative reiterated the findings of the impugned order.

After considering the submissions and records, the Tribunal found that the duty payment was made under protest, as clearly indicated in the TR-6 challan and a submitted letter. The Tribunal held that the limitation under section 11B does not apply in such cases for refunding excise duty. Additionally, the Tribunal noted that the department's appeal to the Supreme Court does not automatically withhold the appellant's refund, as clarified in circulars by the Central Board of Excise Customs. Therefore, the Tribunal concluded that the appellant is entitled to the refund and set aside the impugned order, allowing the appeal.

(Separate Judgment delivered by the Judges: None mentioned)

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