2017 (11) TMI 1486

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....peal for refund of certain duty amount claim to have been deposited under protest has been rejected. The appeal has been filed on the following questions of law:- "(i) Whether upon the facts and circumstances of the case, the Tribunal was justified in holding that the refund claim of the appellant is time barred and ought to have been applied within one year from the date of passing order of the Hon'ble High Court at Allahabad ignoring the fact that the amount of service tax was deposited under the Protest, which has not been disputed, and as such the provisions of 11B of the Act are not said to be barred by limitation? (ii) When upon the facts and circumstances of the case, the Tribunal was justified in not conside....

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....expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under ....

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....low:- "83... 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. 84. ... ....