AI Drafter 
TaxTMI 
TaxTMI 
2024 (5) TMI 1270
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....al hearing. There is one issue for my determination. It is undisputed fact that the refund claim was filed first time on 27.01.2016 before the proper authority for refund of duty as consequence to CESTAT'S Final Order dated 08.05.2014. The appellants have pleaded that they did not receive the Tribunal's Order and they downloaded it from the Tribunal's website in Jan 2016. I find from the CESTAT's Final Order dated 08.05.2014 that, the Advocate of the Appellant Shri Rajesh Chibber was present on the date of hearing/decision dated 08.05.2014 and this CESTAT's Order was dictated and pronounced in open court, therefore, the appellant cannot take a plea for not receiving order copy when his advocate is present in the Court on....
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....rest, if any, paid on such duty had not been passed on by him to any other person: Explanation. - For the purposes of this section, - (B) "relevant date" means, (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; Thus, revenue is justified in their action through 0-1-0 dated 03.03.2017 which needs no interference." 2.1 Appellant had filed a refund claim with the jurisdictional authorities on 27.01.2016, claiming refund of amounts deposited by them as per the direction of the officers of the revenue who visited their premises on 18.02.2009 an....
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....ovided that no such adjournment shall be granted more than three times to a party during the hearing." As the matter has been adjourned for more than the prescribed number of times as per the proviso to section 35C (1A) the matter is being taken up for consideration on the basis of documents and records after hearing the respondents. 3.3 Have heard Shri Manish Raj learned Authorized Representative for the Revenue, who reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Lower authorities have rejected the refund claim filed by the appellant, holding the same to be barred by limitation as provided by Secti....
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....nce on record to corroborate the allegation of clandestine removal." 4.5 From plain reading of the above it is evident that the amounts have been deposited as per the direction of the departmental officers in respect of certain shortages detected at the time of visit. The amounts so deposited on the direction of the departmental officer cannot be said to be voluntary deposit. Further appellant have contested the demand and have finally succeeded in getting the same set aside by the tribunal. As the appellant was contesting the demand the amount paid by them were necessarily not paid voluntarily but were paid under compulsion from the officer and were paid under protest. 4.6 Further it needs to be noted that the amounts paid by the app....
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..... In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order. The appeal is, therefore, allowed." 4.8 Similar view was expressed by the tribunal in case of Hawkins Cookers Ltd. [2017 (346) E.L.T. 298 (Tri. - Mumbai)] observing as follows: "5. I find that the original dispute raised by the department is that the admissibility of Cenvat credit in respect of packing material. Due to the dispute, appellant reversed the Cenvat credit. On the said dispute appellant succeeded partly before the Tribunal. Accordingly, amount reversed was claimed as a refund. I find that this is not a case of refund of excise duty paid on fin....