2013 (8) TMI 199

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.... "Is CESTAT correct in holding that the assessee's claim will not fall under the jurisdiction of the period of limitation as stipulated in Section 11B of the Central Excise Act, 1944 during the relevant period (six months) since the issue is after the off shoot of Order in Appeal passed in favour of the assessee, whereas the Hon'ble Apex Court in the case of M/s.Dena Snuff Pvt. Ltd v. the Commissioner of Central Excise, Chandigarh reported in 2003 (157) ELT 500 (SC) has held that "the period of limitation of one year prescribed under Sub Section (1) will not apply in case duties are paid under protest. The question then is from which date will the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Indust....

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.... the duty on freight charges for the subsequent period from 30.10.1995 to 31.5.1997. The assessee also preferred another refund claim on 15.4.1999 for refund of duty paid for the period from 30.10.1995 to 31.5.1997 based on the order of the Commissioner of Central Excise (Appeals) dated 30.7.1998. The said refund claim was rejected by the lower authority on 29.9.2000 on the ground of limitation that the duty was not paid under protest. The Assessing Officer rejected the refund claim made by the assessee, holding that the same was not filed within 6 months from the date of payment of duty as per Section 11B of Central Excise Act. Following the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd v. Union of India (199....

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....ion to make any refund claim, which inturn depends upon the mode of payment of duty under protest or not under protest? While according to the Revenue, the payment of duty is without any protest, the assessee's categorical stand is that it is deemed to be paid under protest. 6. Both the Revenue and assessee relied on the same decision of the Apex Court in the case of Mafatlal Industries Ltd reported in 1997 (89) ELT 247 (SC) in respect of their respective contentions whether the refund claim was made under protest or not. 7. Though it is sought to be contended on the side of the Revenue that the decision of the Supreme court in the case cited above is more applicable to the case of the Revenue, we are not inclined to accept the same. ....

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....roducts under sub heading 2404.60. Whereas, the Revenue classified the products under sub heading 2404.50. The CESTAT in the case of another assessee held the same product to be classifiable under the heading 2404.60 and the same was accepted by the Tribunal in favour of the assessee. On the basis of such decision, the appellant filed the application for refund of the duty paid under protest. In the mean while, the assessee's own case involving same issue came to be decided on 28.8.2003 in favour of the assessee on the basis of the identical finding that the assessee's product would be classifiable under sub heading 2404.60 and not under 2404.50. When the question to be determined whether the cause of action for refund claim arises after di....