2018 (8) TMI 783 – CESTAT ALLAHABAD – TMI – Refund claim – duty paid under protest – time limitation – Held that:- Every refund application has to pass through the bar of limitation in terms of the provisions of section 11B of the Central Excise Act. However, as per exceptions carved out in the said section, the limitation would not apply if the duty stands paid under protest or the assessments are provisional.
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The appellant have taken a categorical stand that the reversal was being done by them after lodging their protest vide letter dated 05.06.2009. If that be so, the limitation would not apply – However, neither of the authorities below have referred to and considered the said protest letter filed by the appellants.
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Matter remanded to the original adjudicating authority for re-consideration in the light of the protest filed by the assessee – appeal allowed by way of remand. – E/70256/2018-EX[SM] – A/71369/2018-SM[BR] – Dated:- 10-7-2018 – MRS. ARCHANA WADHWA, MEMBER(J
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ity is not excisable goods, the provisions of Rule 6(3) of the Cenvat Credit Rules would not apply as regards the sale of electricity. It is seen that the said order of the Hon ble Supreme Court reported in 2015 (322) ELT 769 (SC) was followed by the Commissioner in the assessee s own case and vide Order-in-Original dated 17.11.2016, the demand raised against the assessee on the said ground was dropped. 3. As a consequence of dropping of demand, the appellant filed a refund claim on 01.12.2016, to the extent of ₹ 30,02,178/-. While adjudicating the said refund claim, the original adjudicating authority allowed the same to the extent of ₹ 26,23,605/- and rejected the amount of refund of amounting to ₹ 3,78,573/- on the ground that the same pertains to the period 2007-08 and 2008-09 and inasmuch as the said period was not covered by the order dated 17.11.2016 of the Commissioner of Central Excise, Hapur, the same is not refundable to the appellant. 4. Being aggrieved wi
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e by filing a protest letter dated 05.06.2009. The appellant was reversing proportionate credit on the inputs after an objection raised by the audit and after filing of the protest letter in question. It is their contention that inasmuch as the issue now stands decided in their favour, on merits, the said refund has to be granted to them. 6. After carefully considering the submissions made by both the sides I find that every refund application has to pass through the bar of limitation in terms of the provisions of section 11B of the Central Excise Act. However, as per exceptions carved out in the said section, the limitation would not apply if the duty stands paid under protest or the assessments are provisional. The appellant have taken a categorical stand that the reversal was being done by them after lodging their protest vide letter dated 05.06.2009. If that be so, the limitation would not apply. However, neither of the authorities below have referred to and considered the said pro
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