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Judgment
These appeals are directed against the impugned order dated 1.5.2015 passed by the Commissioner (Appeals-I), Central Excise, Jaipur, upholding
rejection of refund claim in the adjudication order on the ground of limitation.
Brief facts of the case are that the audit wing of Central Excise Department during the course of audit had detected irregular availment of cenvat
credit by the appellant. On pointing out such mistake, the appellant had immediately reversed such Cenvat credit. The reversal particulars were
intimated by the appellant to the Central Excise Department vide its letter dated 28.04.2009. In the said letter, the appellant had informed that the
cenvat amount has been reversed under protest. Subsequently, the Department issued the SCN seeking denial of irregular availment of cenvat credit.
The said notice culminated in the adjudication order dated 01.02.2010 wherein, cenvat credit with regard to some of the inputs were allowed. As a
consequence of the favourable order, the appellant filed the refund application on 27.12.2011, claiming refund of cenvat credit allowed by the
adjudicating authority. The refund application was rejected by the Adjudicating Authority vide order dated 28.08.2012, holding that the same is barred
by limitation of time since the refund claim has been filed after one year from the date of the adjudication order. The appeal filed against the rejection
of refund claim was also upheld by the Commissioner (Appeals). Thus, this present appeal is before the Tribunal.
Mr. Alok Kothari, the Ld. Advocate appearing for the appellant submits that pursuant to the favourable adjudication order dated 1.12.2010, the
appellant filed the refund application on 27.12.2011. It is his submission that since the duty along with interest has been paid under protest, the time
limit prescribed in sub-section (1) of Section 11B of the Central Excise Act, 1944 will have no application and thus, rejection of refund claim is not
legal and proper.
On the other hand, Sh. GR Singh, appearing for the Revenue Respondent submits that as per the explanation appended to Section 11B, the refund
claim is required to be filed from the date of the adjudication order allowing cenvat credit to the appellant, which in the present case is 01.02.2010.
According to him, since the refund claim has been filed on 27.12.2011, as per the explanation of ‘relevant date’ contained in Section 11B of the
Act, the same is clearly barred by limitation of time and thus, the authorities below are justified in denying the refund benefit.
I have heard the Ld. Counsel for both the sides and perused the records.
It is an admitted fact on record that the refund amount, in question, has been paid by the appellant under protest. Sub-section (1) of Section 11B
provides the time limit of one year from the relevant date for filing the refund application. In the 2nd Proviso contained therein, it has been provided
that the limitation of one year shall not apply where any duty and interest has been paid under protest. The explanation has been added to Section 11B
with the purpose of clarifying the term relevant date as contained in Sub-Section (1), which deals with filing of refund application within one year in
normal circumstances and the 2nd proviso contained therein provides that the time limit will not have any application, where the duty is paid under
protest. In view of the mandates of Section 11B, in case of payment of duty under protest, the limitation for filing the refund application will not have
application. Therefore, I am of the considered opinion that the refund application filed on 27.12.2011 pursuant to the favourable adjudication order
dated 01.02.2010 cannot be considered as barred by limitation of time and thus, the appellant should be entitled for refund of the amount in question
paid under protest.
In view of the above, the impugned order is set aside and the appeal is allowed in favour of the appellant with consequential benefits.
(Dictated and pronounced in open court)