2016 (1) TMI 68

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....piry of one year from the relevant date is time barred under provisions of Section 11 B of the Central Excise Act 1944. 3. The learned advocate for the appellant says that their payment of service tax in this case has always been under protest expressly or impliedly; it is evident, when they have been sanctioned refund on the same issue for the payments made for the prior period of May 2006 to June 2006. The learned advocate also points out that they have also been sanctioned refund on the same issue for the future period of December 2008 to August 2009. He says that the said refund which is for the period of July 2007 to November 2008 is the middle period for which there was no need to file any express protest, as the payment of service....

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....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 expressed by the learned Counsel. 4. The learned A.R....