2021 (8) TMI 1131

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....zinc scrap, aluminum scrap, ingots and lead scrap as their raw material. The Revenue was of the view that zinc skimming and zinc ash are final products and the appellant is liable to pay duty. Therefore, an investigation was started. The appellant paid an amount during the period 2008-09 and 2009-10 under protest to avoid interest liability. Later on, the matter was settled in favour of the appellant on the basis of CBEC's circular in this regards wherein it was observed that no duty is payable on zinc skimming and zinc ash arising during the course of manufacturing of the final products. Thereafter, the appellant filed refund claim on 02.12.2016 which was ultimately sanctioned on 04.09.2019, but no interest was given to the appellant from ....

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....y on impugned goods. Therefore, it can at the best be a case of mis-interpretation/mis-application of the law and not unconstitutionality of any provision of law. He relied on the decision of Hon'ble Apex Court in the case of Mufatlal Industries Ltd vs UOI - 1997 (89) ELT 247 (SC) to say that in cases where a tax or duty is claimed on the ground that it has been collected from the petitioner by mis-interpreting/mis-applying the provisions of Central Excise Act, 1944 or any of the rules, regulations or notifications issued thereunder, such a claim has necessarily to be preferred under and in accordance with the provisions of the said enactment before the authorities specified thereunder and within the period of limitation prescribed therein.....

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....g the period 2008-09 and 2009-10 under protest wherein the Revenue is of the view that the appellant is liable to pay the duty on zinc ash and zinc skimming. Later on, the levy was held unconstitutional. It was the understanding of the appellant that they are liable to pay duty, that's why they paid the duty under protest. In these circumstances, the amount deposited under protest is not to take the benefit of time limit, but liability of duty as alleged. Further, if Revenue is of the view that this amount could not be collected at that stage, the Revenue was free to refund the said amount but the respondent enjoyed the amount without any authority of law. The ld. AR failed to show that in case the amount deposited under protest is governed....