TaxTMI 
TaxTMI 
2015 (12) TMI 233
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....rtment. The appellant is a manufacturer of fertilizer. One of its raw material is Naphtha which the appellant purchases from Indian Oil Corporation from Mathura. By means of a notification, issued under the Central Excise Act, 1944, excise duty is required to be paid at a concessional rate if Naphtha is purchased for manufacture of fertilizer. The appellant was receiving raw Naphtha at a concessional rate of duty. For the period 08.02.1998 to 11.05.1998, the jurisdictional excise authority did not allow the appellant to purchase raw Naphtha at concessional rate of duty and refused to issue a certificate in Form CT-2. The appellant protested vide letters dated 21.01.1998 and 10.02.1998 and deposited the excise duty vide challan dated 4th Fe....
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....pired as the application was filed on 21.08.1999 after the period of six months and, therefore, the claim was barred by time. The appellant, being aggrieved, thereafter, preferred a second appeal before the Tribunal which was rejected on the ground of limitation. The Tribunal, however, came up with a new ground contending that since the appellant was a buyer, he was not entitled to apply for refund under Section 11-B of the Act. The appellant, being aggrieved, has filed the present appeal which was admitted on the following substantial questions of law:- "(1) Whether in view of the Constitution Bench decision of Hon'ble the Supreme Court of India in the case of Mafatlal Industries Limited vs. Union of India, reported in (1997) Vol. 89....
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....ction 11-B of the Act provides, that any person claiming refund of excise duty and interest is required to make an application for refund within six months. The second proviso states that the limitation of six months would not apply where any duty and interest, if any, was paid under protest. The first appellate authority has given a categorical finding that the duty was paid under protest. We also affirm this finding upon a perusal of the letter dated 21.01.1998 which has been considered by the first appellate authority as well as the letter dated 10.02.1998 and the challan dated 04.02.1998 through which the duty was deposited. In view of the aforesaid, it is clear that the amount was deposited under protest. Further, the finding of the f....
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....ifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that "the limitation of six months shall not apply where any duty has been paid under protest". Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11B along with the definition of "relevant date", there is no room for any apprehension of the kind e....
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....t the proper officer is empowered to do is to acknowledge the letter to protest when delivered to him - and that a acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure proscribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the or....
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....rovision of Section 12 of the Limitation Act, would automatically come into play, namely, the period spent in obtaining the order has to be excluded. If the provision of Section 12(2) of the Limitation Act is applied, the appellant's application for claiming the refund would be within a period of limitation of six months, inasmuch as, the judgment of the Tribunal dated 22.01.1999 was received by the appellant on 23.03.1999. The period of limitation will start accordingly from that date. We are, therefore, of the opinion that application of the appellant for claiming refund was filed within a reasonable time and, in any case, within a period of limitation. The learned counsel for the appellant has placed reliance upon a decision of the ....