2022 (12) TMI 470

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....of limitation set aside the demand on 26.11.2018 vide Final Order No. A/12620/2018. The appellant consequently filed refund claim on 04.09.2020 which was received by the revenue on 09.09.2020. The said refund claim was rejected by the lower authorities on the ground of limitation. Aggrieved by the said Order, the appellants are before this tribunal. The arguments of the appellant is essentially based on the ground that the amount paid by them during investigation should be deemed to be duty paid under protest and consequently, the second proviso to Section 11B regarding limitation should be applicable to the claim of the refund and limitation should not apply to the claim filed by the appellant. Learned counsel relied on the following decis....

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....st. He has relied on the decision of the hon'ble High court of Allahabad which in turn relied on the decision of the Hon'ble Apex Court in the case of MAFATLAL INDUSTRIES LTD.- 1997 (89) ELT 247 (SC) in para 10 as follows:- We find the Supreme Court in the case of Mafatial Industries Ltd. v. Union of India (supra) has held as below: "83. The second proviso to Section 118 (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 du....

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....g stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest, in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B..." The said decision is not applicable to the instant case as in this case duty was not paid under orders of court. 4.2 I find that the decision of hon'ble High Court of Gujarat in the case of AJNI INTERIORS- 2019 (9) TMI 529- GUJARAT HIGH COURT also takes note of the decision of the Hon'ble Apex Court in the case of MAFATLAL INDUSTRIES LTD.(supra) in Para 22. The hon'ble High Court has observed as follows:- 14. Considering the arguments advanced by learned advocates of the parties and scanning the mat....

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.... and secondly there is nothing on record to establish that the petitioner had paid the amount in question under protest, and hence the second proviso to sub-section (1) of Section 11B of the Act which provides that the limitation of one year shall not apply where duty and interest, if any, paid on such duty has been paid under protest would not be applicable. Once it is held that the payments made by the petitioner were in the nature of excise duty and were not deposits, the provisions of Section 11B of the Act would be attracted; and having regard to the fact that the amounts in question had not been deposited under protest, the petitioner would be liable to file the claim within the prescribed period of limitation and in the manner prescr....