2017 (2) TMI 428

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....confirmed by the proper officer was set aside by Commissioner of Central Excise (Appeals) vide order dated 29^th August 2003 following which appellant sought refund of the amount by application dated 1^st October 2003. The refund sanctioning authority rejected the claim as barred by limitation owing to payment having been made about nineteen months before applying for refund. The impugned order-in-appeal no. BR (400) 57/MV/2005 dated 19^th May 2005 of Commissioner of Central Excise, Mumbai Zone-I upheld the rejection. 2. Both the authorities held that relevant date for computing limitation is the date of payment of duty and, thereby, rendered appellant to be ineligible. Che contention of appellant that various judicial decisions have hel....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....329 (Gujarat)], holding that amount paid during investigation is regarded as 'deposit' erase the restriction of limitation in section 11B from the claim for refund. Further reliance was placed on the decision of the Tribunal in Commissioner of Central Excise, Aurangabad v. BCL Forgings Ltd [2005 (192) ELT 922 (Tri-Mumbai)] whose enunciation that '4 ... ... When an assessee goes in appeal against an order of assessment and against the demand that itself is a protest. No formal letter of protest as required under Rule 233B of the Central Excise Rules is necessary in such cases. The Revenue's contention that para 86 of the Supreme Court 's decision in Mafatlal Industries Ltd [1997 (89) ELT 247 (SC)] is in favour of Revenue i....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....und sanctioning authority that prompted him to assert that, if all duty paid in excess were deposit the time-bar in section 11B of Central Excise Act, 1944 is rendered otiose. It is not for us to fathom the intent, purpose or scenario envisaged in imposing a time-limit in the statutory provision governing refund. More so, as the provision has been bound down, over the years, by various other restrictions and conditions owing to which it is now not appropriate to attempt compliance with letter of the law as read. It is the spirit of the law that should be accorded its rightful place in sanctioning of refund claims. 6. A counter-question that could well be raised is the utility of filing an appeal. if appropriate restitution is not to foll....