TaxTMI 
TaxTMI 
2021 (3) TMI 885
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....hnupriya, Learned Advocate appearing for the appellant, are as under: (i) The appellant filed an application for refund vide application dated 20.08.2018 in Annexure-67, FORM-R - Application for refund of Excise Duty; (ii) The above refund claim was made after the receipt of Final Order Nos. 41520 to 41521 of 2017 dated 08.08.2017 of the Division Bench of CESTAT, Chennai; (iii) The claim of the appellant for refund has never been under Section 11B of the Central Excise Act, 1944 or under Rule 5 of the CENVAT Credit Rules, 2004; (iv) The appellant, by mistake, filed its refund claim in FORM-R, but a simple application would have sufficed; (v) What was claimed as refund was not of any Excise Duty or a part thereof and not even inter....
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....11B was also not applicable since the refund did not arise as a consequence of CESTAT's Order; (xi) Section 11B (ec) was inserted only for the benefit of the appellant and could not be made applicable against the appellant; (xii) The unutilized credit was on account of pre-deposit which would amount to payment under protest, for which reason limitation under Section 11B is not applicable; (xiii) The unutilized credit was only frozen, but not reversed, which was also under protest, etc. 2.2 Learned Advocate for the appellant also relies on the following decisions/judicial interpretations : (i) M/s. Affinity Express India Pvt. Ltd. v. C.C.E., Pune-I [2015 (37) S.T.R. 333 (Tri. - Mum.)]; (ii) C.C.E., Chennai v. M/s. Foxconn India (....
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.... Union of India reported in 1997 (89) E.L.T. 247 (S.C.). He also relied on the decision of the Hon'ble jurisdictional High Court in the case of Commissioner of Central Excise, Coimbatore v. M/s. GTN Engineering (I) Ltd. reported in 2012 (281) E.L.T. 185 (Mad.). 4. In her rejoinder, Learned Advocate for the appellant would submit that the decision of the Hon'ble Madras High Court in the case of M/s. GTN Engineering (I) Ltd. (supra) was rendered in the context of Rule 5 of the CENVAT Credit Rules, 2004 and hence, the principles set out therein are not at all applicable to this case. 5. Heard both sides, perused the documents placed on record and have also gone through the various decisions relied upon/referred to during the course of argu....
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.... (v) C.C.E., Nasik v. M/s. Nasik SSK Ltd. [2017 (4) T.M.I. 891 - CESTAT, Mumbai]: The issue here related to the claim of refund of an amount equal to 5% / 6% paid/reversed by the appellant in terms of Rule 6 (3) of the CENVAT Credit Rules, 2004, to which the Learned Mumbai Bench had held that the limitation provided under Section 11B is not applicable. (vi) M/s. Natural Slate and Sandstone Exports (P) Ltd. and ors. v. C.C.E., Jaipur [2018 (2) T.M.I. 1560 - CESTAT, New Delhi]: The refund claim of unutilized credit was made in terms of Rule 5 of the CENVAT Credit Rules, 2004, to which the Learned Bench had held that limitation under Section 11B is not applicable. (vii) C.C.E. v. M/s. GTN Engineering [2012 (281) E.L.T. 185 (Mad.)]: The r....