2014 (11) TMI 994

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....on 11B of the Central Excise Act, 1944 are applicable. 2. Shri Alok Srivastava (AR) appearing on behalf of the Revenue argued that refund claim was filed on 24-7-2012 in view of the order dated 17-12-2008 - 8-1-2009 passed by CESTAT. It was his case that since the refund claim was filed after one year from the date of CESTAT's order, the same has to be considered as time barred as per the provisions contained in Explanation (B) (ec) of Section 11B of Central Excise Act, 1944. It was his case that order passed by the first appellate authority may be set aside and the order passed by the Adjudicating authority should be restored. 3. Ms. Richa Goyal (CS) appearing for the respondent on the other hand argued that the amount was paid....

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....espondent won the case on merits and filed refund claim. Action of the Respondent by contesting the issue on merits itself constitutes a case of 'deemed protest' and no time limit will be applicable even as per the second proviso to Section 11B of the Central Excise Act, 1944. However, the amounts were not paid as duty at the time of providing of services but was paid only when the investigation was initiated by the Revenue. In the facts and circumstances the amounts paid will be a case of 'Deposit' and will not be a situation of payment of duty when on merits Respondent got a favourable order from the appellate channel. The amount so paid was not recovered on the invoices and department has also not rejected the refund claim on unjust-enri....