TaxTMI 
TaxTMI 
2018 (6) TMI 307
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....rough order-in-original dated 22.11.2013. The discussion and finding of original authority are reproduce below:- "10. I have carefully gone through the case records, Writ Tax No.688/13 & paper filed along with the petition, the Hon'ble CESTAT's Final Order No.690/2011-Ex dated 29.7.2011, related & referred show cause notices, Order-in-Original & Oder-in-Appeals, documents submitted by the party vide letter dated 11.11.2013, case laws cited, record of personal hearing and all other relevant records available relating to the refund application dated 7.4.97. 11. I find that the party has claimed refund of duty paid under protest from the period 14.05.1986 to 30.06.1990 through refund application dated 07.04.1997. The party has also submitted copy of letter of protest dated 01.05.1986 and correlation chart of duty paid under protest, which are not disputed by the department. 12. As regards to the fact the duty claimed as refund has been borne by the party themselves and had not passed on to their customers, they have submitted that the price of Crimped Uncut Waste & Cut and Processed Waste, before assessment and after assessment under Tariff Item No.18(I) vide O-in-O dated 18.7.19....
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....ecision which necessitated him to deposit the duty under protest, he may, within three months of the date of delivery of the letter of protest, give a detailed representation to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise. (6) In cases where the remedy of an appeal or revision is available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may file an appeal or revision within the period specified for filing such appeal or revision, as the case may be. (7) On service of the decision on the representation referred to in sub-rule (5) or of the appeal or revision referred to in sub-rule (6) the assessee shall have no right to deposit the duty under protest: Provided that an assessee shall be allowed to deposit the duty under protest during the period available to him for filing an appeal or revision, as the case may be, and during the pendency of such appeal or revision, as the case may be. (8) If any of the provisions of this rule has not been observed, it shall be deemed that the assessee has paid the duty without protest. Note:- A letter of protest or a representation und....
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....t of such classification. I also find that the Hon'ble Tribunal vide their Final Order No.736-738/96-D dated 12.12.1996 allowed the party's appeal on grounds of lack of evidence and non application of extended period as there was no suppression on their part. Thus, it is wrong to state that the classification dispute was finally settled vide CESTAT Final Order No.736-738/96-D dated 12.12.1996, as the Hon'ble CESTAT was not sitting in appeal of Collector (Appeals) Order-in-Appeal No.188/91 dated 3.05.1991, which had already attained finality and was binding on both of the party and the department. This is further corroborated by the fact that the party stopped payment of duty under protest on the products in question from passing of the said O-in-A No.188/91 dated 3.05.1991 and was paying normal duty as ordered by Collector Appeals vide O-in-A No.188/91 dated 3.05.1991, even at the time when appeal against O-in-O No.27-29/Collector/87 dated 30.10.1987 was pending before Hon'ble CEGAT, which was finally decided vide Final Order No.736-738/96-D dated 12.12.1996. 17. The party was asked to further explain their stand on limitation both in the letter of personal hearing dated 13.11.20....
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....ed 12.12.1996. 19. I, thus, find that the classification dispute between the department and the party ended when the Collector (Appeals) Order No.188/91 dated 3.5.1991 attained finality i.e. when no appeal was preferred against such order either by the party or by the department. In view of the above discussion and following the ratio of judgments in case of CCE versus INDORMA EXPORTS 2010 (254) ELT 147 (TRIB.-DELHI) AND DENA SNUFF (P.) LTD. versus CCE 2003 (157) ELT 500 (SC), I find that period of limitation of six months (as it stood at that time) starts running from that date only i.e. the date of final decision of Collector (Appeals) on the matter in assessee's own case. Accordingly, I hold that the party's refund claim after lapse of approximately six years is definitely hit by limitation prescribed under Section 11B of the Central Excise Act, 1944." In view of above findings the original authority rejected the claim of refund filed on 7.4.1997. Aggrieved by the said order appellant preferred appeal before commissioner(Appeals). Ld.Commissioner(Appeals) decided the appeal thorough impugned order-in-appeal dated 19.5.2014. The finding of ld.Commissioner(Appeals) in para 5.6....
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....y limitation and other is appellant could not establish that the duty burden was not passed on to the customers. He has brought to our notice the relevant provision of section 11B of Central Cxcise act, 1944 relevant during the period of refund which was on statute till 1990 wherein sub section 1 of section 11B provided that "any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before expiry of 6 months from the relevant date. Provided that limitation of 6 months shall not apply where any duty has been paid under protest". He has further submitted that it is undisputed fact that is duty sought to be refunded was paid under protest. He has contended that it is provided through proviso to sub section 1 of section 11B of Central Excise act, 1944 which was on statute till 1990 that in case of duty paid under protest, no limitation was provided. In respect of the other ground of rejection that is inability of appellant to prove that duty burden was was not passed on to the customers, he has brought to our attention documents filed at page numbers 150-158 of appeal paper book and thorough invoices av....