AI Drafter 
TaxTMI 
TaxTMI 
2026 (4) TMI 606
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.... 30.03.2012. 3. The appellant filed an appeal before the first appellate authority challenging the denial of this CENVAT credit. The first appellate authority dismissed the appeal filed by the appellant. Aggrieved by the same, the appellant challenged the same before the Tribunal. 4. The appellant, in the meantime, had filed an application under Rule 18 of the Central Excise Rules, 2002 seeking for refund of excise duty paid on goods cleared for export. The application was processed and refund was sanctioned by order dated 06.05.2014. However, the rebate sanctioned was appropriated against the demand arising out of the Order-in-Original No.4/2012, dated 30.03.2012. 5. It is alleged that the rebate was appropriated without considering the pendency of the appeal in respect of the demand, before the appellate Tribunal. Ultimately, the appellate tribunal by order dated 10.12.2018 was pleased to set aside the demand arising out of the Orderin- Original No.4/12. 6. In the light of the above development, the appellant filed a request dated 14.08.2020 seeking for return of the rebate appropriated against the demand confirmed in Order-in-Original No. 4/2012 in the light of the o....
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....ll await and the recovery itself will be stayed during the pendency of the appeal. When the stay order was in operation, the appropriation was made by passing an Order-in-Original No.30 of 2014 dated 06.05.2014. On going through the appropriation order, it is seen that the subject matter before the Tribunal, namely, Order-in-Original No. 4 of 2012 dated 03.03.2012 was also included and the duty along with penalty was appropriated by making a specific mention about the stay order that was granted by the Tribunal on 06.05.2013. Ultimately, the main appeal came to be allowed by the Tribunal by order dated 10.12.2018. 3. The petitioner sent a communication dated 14.08.2020 requesting for refund by quoting the earlier request made through communication dated 27.07.2020. 4. The above request made by the petitioner ultimately came to be rejected by Order-in-Original No. 23 of 2020 dated 18.09.2020 and it was confirmed by the appellate authority and it was further confirmed by the CESTAT through the impugned proceedings dated 03.09.2021, which is the subject matter of challenge in the present appeal. 5. The learned counsel for the appellant submitted that the app....
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....lid. If a writ petition had not been filed challenging the appropriation order, at least we could have gone into the legality and determined as to whether the amount sought as a refund can be construed as a duty and consequently will come within the purview of duty under Section 11B of the Central Excise Act. 9. The learned counsel for the appellant seeks for some time to clarify on this issue. 10. List the matter on 02.04.2026." 10. Pursuant to the above order, the matter was listed for final hearing today. The learned counsel for the appellant submitted that there is no estoppel in a taxing statute and the principle of equitable estoppel which is the rule of equity cannot prevail against the law. To substantiate this submission, the learned counsel relied upon the judgment in Metal Forgings Pvt. Ltd. v. Union of India and Ors., reported in 1985 (20) ELT 280 (Delhi), Commissioner of Wealth Tax v. Meattles (P.) Ltd., reported in [1985] 156 ITR 569. The learned counsel also relied upon the judgment of the Apex Court in Metlex (1) Pvt. Ltd. v. Commissioner of C. Ex., New Delhi, reported in 2004 (165) ELT 129. 11. This Court considered the submissions made on e....
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.... year from the relevant date in such form and manner as may be prescribed. The relevant date is provided under Explanation B and for the facts of the present case, clause (ec) will be relevant. It provides that in case where duty becomes refundable as a consequence of judgment, decree, order or direction of an appellate authority, the appellate tribunal or any Court, the date of such judgment or order will be relevant for calculating the limitation period. 18. The second proviso to Section 11B provides that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. 19. As stated supra, the appeal was pending before CESTAT and an order of stay was also granted by CESTAT and thereby, the dues payable under Order-in-Original No.4/2012 dated 30.03.2012 was stayed during the pendency of the appeal. Strictly speaking, when such stay order was in force, the Order-in-Original No.30/2014 dated 06.05.2014 ought not to have been passed by including the demand made under Order-in-Original No.4/2012 dated 30.03.2012. In fact, in the said order, the concerned authority has taken note of the stay order passed by CESTAT on 0....
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....tment by taking advantage of the unamended provision, at the best can only be construed as a payment made under protest. 23. At this juncture, it will be relevant to take note of the judgment in Commissioner of C. EX., Chennai-II v. Electro Steel Castings Ltd., reported in 2014 (299) ELT 305 and the relevant portion is extracted hereunder: "6. Though it is sought to be contended on the side of the Revenue that the decision of the Supreme Court in the case cited above is more applicable to the case of the Revenue, we are not inclined to accept the same. The Apex Court in para 83 under an identical situation, dealt with the same issue, wherein also payment was made, when the assessee has been contesting the levy of duty for the earlier period. The Supreme Court is compelled to say that- 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 duty without protest even when he contests the levy of duty, its rate, classification or any other aspect... 7. That being the categorical ob....
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.... to period of limitation, uniformly held that no limitation was applicable to the payment made under protest. The Hon'ble Supreme Court in the earlier judgment clearly observed that the payment made, when the assessee has been challenging the earlier levy of duty, is deemed to be under protest and not otherwise. Hence, the combined appreciation of both the cases decided by the Supreme Court would lead to an irresistible inference that the payment made herein is also deemed to be under protest and no limitation is applicable and the claim is maintainable and is rightly decided by the CESTAT. 9. In the light of the above discussion, we find no justification to interfere with the order of the Customs, Excise and Service Tax Appellate Tribunal. The Civil Miscellaneous Appeal is hence dismissed. Consequently, connected Miscellaneous Petition is closed. No costs." 24. It will also be relevant to take note of the judgment of the Bombay High Court in S. and H. Gears Pvt. Ltd. v. Commissioner of Customs, reported in 2004 (167) ELT 538, where it was held that the very filing of an appeal against an assessment order amounts to payment of duty under protest. A similar view was ....