M/s A B Tools Pvt. Ltd. vs Commissioner Of CGST, Shimla

 The appellant is in appeal against the impugned order wherein the refund claim was Rs. 48,182/- has been denied to the appellant as time barred.

The facts of the case are that during the course of audit an objection was raised and the appellant reverse the cenvet credit and intimated to the

department. Thereafter, it was held that the appellant was not required to reverse the cenvet credit and the same was contested by the appellant. The

claim of the appellant is that they have reversed the said amount under protest, therefore, the time limit prescribed of one year is not applicable in the

facts of the case. Against the said order, the appellant is before me.

The Ld. Counsel for the appellant submits that the appellant reversed the cenvet credit is under protest as the reversal of cenvet credit is being

contested, therefore, the time limit prescribed for one year is not applicable and the refund claim cannot be rejected as time barred in the light of the

following decisions: -

(i) ITEL Industries Ltd. Vs. Commissioner of Central Excise, Calicut â€" 2014 (301) ELT 288 (Ker.).

(ii) Kisan Cooperative Sugar Factory Ltd. Vs. Commissioner of Central Excise,- 2018 (8) GSTL 365 (All.)

He further submitted that the adjudicating authority has given the finding that no protest has been filed by the appellant, therefore, the reversal of

cenvet credit can be said under protest. It is his submission that when the appellant is contesting the reversal, the same is to be treated as paid under

protest and to support of this, he relied on the following decisions:-

(i) Hutchison Max Telecom Pvt. Ltd. Vs. Commissioner of Central Excise, Mumbai â€" 2004 (165) ELT 175 (Tri.-Del.)

(ii) Tamil Nadu Ex-Servicemen’s Corporation Ltd. Vs. Commissioner of Central Excise â€" Chennai- 2020 (38) GSTL 98 (Tri.-Chennai)

(iii) Bayshore Glass Trading Pvt. Ltd. Vs. Commissioner of Customs, Kolkata -2002 (148) ELT 1243 (Tri.-Kolkata).

On the other hand, the Ld. AR contested the submission made by the Ld. Counsel and submits that as it is admitted by the Ld. Counsel that no

protest letter has been filed by them and the mere intimation of the reversal of cenvet credit that does not mean any protest has been made by the

appellant. Therefore, as per the decision of the Mafatlal Industries Ltd. Vs. UOI-1997 (89) ELT 247 (SC) wherein it has been held that the period of

limitation prescribed under Section 11B(1) of the Central Excise Act, 1944 was applicable. Further, he relied on the decision of Laxmi Board & Paper

Mills Ltd. Vs. CCE, Mumbai-2007 (208) ELT 384 (Tri.- Mum), Shree Ram Food Industries vs. UOI â€" 2003 (152) ELT 285 (Guj.), CCE,

Coimbatore vs. Pricol ltd. â€" 2015 (320) ELT 703 (Mad). He further submits that the case laws relied upon by the Ld. Counsel are not applicable to

the facts of this case.

Heard the parties and considered the submissions.

After hearing both the sides, it is a fact are not in dispute that the appellant has intimated the reversal of cenvet credit to the revenue, in that

circumstances, whether contesting the reversal of cenvet credit by the appellant amounts to reversal under protest or not?

The said issue has been examined by this Tribunal in the case of Hutchison Max Telecom Pvt. Ltd. (supra) wherein this Tribunal has observed as

under:-

“4.We have considered the submissions of both the sides. It has not been disputed by the Revenue that the Appellants had claimed the

benefit of Notification No. 11/97 which had been denied to them while assessing the Bill of Entry. The Appellants had challenged the

disallowance of the benefit of notification and finally the Appellate Tribunal allowed them the benefit of the said Notification. It is well

settled law that filing of appeal is by itself is a protest. It is not the case of the Revenue that the Appellants had filed claim for refund of duty

without challenging the assessment. This was the view expressed by the Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. We,

therefore, hold that the refund of the duty paid by the Appellants cannot be denied to them on the ground of claim being time barred. The

matter is, however, remanded to the Adjudicating Authority to consider whether the principle of unjust enrichment is applicable in the facts

of the present matter after following the principle of natural justice.’’

Further, in the case of Tamilnadu Ex-servicemen’s Corpn. Ltd. (supra) again this Tribunal has examined the issue and further observed as

under:-

“6. The decision of the Hon’ble Supreme Court in the case of M/s. ALD Automotive Pvt. Ltd. (supra) relied on by the Revenue deals

with the mandatory requirement of Section 19(11) of the Tamil Nadu Value Added Tax Act, 2006, which provides for claiming input tax

credit, which is not like a refund under Section 11B impugned herein.

7.1 In the decision in the case of M/s. Wardes Pharmaceuticals Pvt. Ltd. (supra), the Hon’ble jurisdictional High Court has answered as

to what constituted payment made under protest, in the following manner :

“10. The above facts are found in the findings recorded by the Commissioner in its order dated 1-6-2007. A conspectus consideration of

the above facts only go to show that the payment made by the first respondent/assessee was not voluntary and was forced to make the said

payment. In such circumstances, the said payment can only be construed as one made under protest. When once the said conclusion based

on the above facts are inevitable, then the second proviso to sub-section (1) of Section 11B of the Central Excise Act, automatically comes

into play. Therefore, the conclusion of the Tribunal in having held that the first respondent made the payment under protest was well

justified and the order of the Tribunal in holding that the application made by the first respondent/assessee for refund of the payment made

in its application dated 18-8-2006 cannot be thrown out on the ground of limitation. The order of the Assistant Commissioner dated 8-11-

2006 in having allowed the refund of Rs.2,15,463/- under Section 11B of the Act was, therefore, perfectly in order and the order of the

Tribunal in setting aside the order of the Commissioner dated 1-6-2007 cannot be called in question. Inasmuch as the above conclusions of

the Tribunal were made based on relevant considerations of the claim of the respondent/assessee and were based mainly on facts relating to

the first respondent-assessee, we do not find any question of law, much less substantial question of law to be entertained in this appeal. We,

therefore, do not find any merits to entertain this appeal. The appeal fails and the same is dismissed. No costs. Consequently, M.P. No. 1 of

2010 is also dismissed.â€​

The same may not apply here since, there is Board resolution - obviously voluntary, though the word ‘protest’ is used, but

nevertheless, the fact remains that the tax was paid to arrest interest. In any case, filing of appeal itself is enough to indicate that the duty

was paid under protest.

7.2 Further, the Hon’ble jurisdictional High Court in the case of M/s. 3E Infotech (supra) has categorically held that even when Service

Tax was paid under mistake of law, the period of limitation cannot be invoked to deny the refund.’’

Further, in the case of Bayshore Glass Trading Pvt. Ltd. (supra) again examined the issue by this Tribunal and observed as under:-

“4. We have considered the submissions of both the sides. It has not been disputed by the Revenue that before assessment of Customs

duty, the value has been enhanced on the Bill of Entry and no order has been issued separately. It is well settled law that filing of Appeal is

by itself a protest. It is not the case of the Revenue that the Appellant without challenging the assessable value has filed claim for refund of

duty said to have been paid in excess. It is apparent from the impugned order itself wherein it is mentioned that “The instant Appeal has

been filed by M/s. Bayshore Glass Trading Pvt. Ltd. against EDI Bill of Entry No. 132327, dated 16-7- 2001 assessed by the Department.â€

It has also been mentioned in the impugned order that “being aggrieved by the above escalation of value, the present Appeal has been

filed with a request to accept the declared value with consequential relief to the Appellant.†The ratio of the decision in Vikas Spinners is

not applicable inasmuch as the assessable value was loaded with the consent of the Special Attorney of the Appellants who had even signed

an affirmation accepting the loaded value of the goods on the back of the bill of entry. Moreover, after examination of the goods, were

found to be mis declared and a show cause notice as issued to them for confiscation of goods and imposition of penalty, which was

contested by the Appellants therein. Even in the said proceedings, the loading of value was not opposed by the Appellants. In the light of

these facts the Tribunal observed that ‘there is nothing on record to suggest that the loaded value was accepted by them only for the

purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. The show cause notice in the

instant case was issued to them only for the confiscation of the goods and imposition of penalty on them due to misdeclaration of nature of

goods and import of the same without specific licence.†In the present matter before us, apparently no notice was issued and value was

enhanced on the Bill of Entry at the time of assessment, which has been challenged by filing the Appeal before the Commissioner (Appeals).

Thus, the Commissioner (Appeals) is required to consider the Appeal on the aspect of valuation. We therefore, remand the matter to the

Commissioner (Appeals) for afresh decision on the aspect of valuation after affording a reasonable opportunity of hearing to the

Appellants.’’

Further, the case laws relied by the Ld. AR have not on the issue in hand i.e. whether contested the payment of duty shall amounts to be paid

under protest or not? Therefore, the said decisions are not applicable to the facts of this case.

In view of the above discussion, I hold that contesting the reversal of cenvet credit by the appellant shall amounts to reversal under protest as per

the various judicial decisions discussed herein above.

In that circumstances, I hold that the refund claim filed by the appellant is not barred by limitation prescribed under Section 11B(1) of the Central

Excise Act, 1944. Therefore, the impugned order is set-aside and the appeal is allowed with consequential relief, if any.

(Order pronounced on 06.05.2021)