Excise refund under protest is not time-barred when the claim is lodged before limitation expires.

Excise refund limitation under Rule 11 read with Rule 173J did not bar a claim where duty was paid under protest and the refund claim was asserted before expiry of the prescribed period. The assessee had expressly recorded its protest and sought registration of the refund claim within time, so the payment was not voluntary or made through inadvertence, error, or misconstruction. As the authorities took no timely decision on those representations, the limitation rule could not defeat recovery of duty not lawfully due. The refund claim was therefore entitled to be allowed.

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Issues: Whether the refund claim for central excise duty was barred by limitation under Rule 11 read with Rule 173J of the Central Excise Rules, 1944, despite the duty having been paid under protest and protest letters having been filed before the expiry of limitation.

Analysis: The relevant record showed that, before the limitation period expired, the assessee had expressly stated that the duty was being paid under protest and had requested registration of its refund claim. The authorities took no decision on those representations for several years. The payment was therefore not a voluntary payment made through inadvertence, error, or misconstruction. In the circumstances, the limitation provision could not be applied to defeat the refund claim, particularly in light of the principle that duty paid under protest and not lawfully due must be returned unless the statute clearly bars recovery.

Conclusion: The refund claim was not time-barred and was entitled to be allowed.

Ratio Decidendi: Where excise duty is paid under protest and a refund claim is asserted before expiry of the prescribed period, the limitation under Rule 11 and Rule 173J does not bar refund if the payment was not voluntary in the sense contemplated by those rules.

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