The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed refund when excise duty was paid under protest and thereby granting relief to Indian Oil Corporation Ltd, the appellant.
The facts of the case are that in respect of warehouse goods the appellant was collecting an amount under head of other charges on which excise duty was not paid. The department’s contention was that the duty on such other charges is required to be paid. On the basis of the audit, the appellant paid an amount of Rs. 93,36,942/- vide TR-6 challan No. 01/2005- 06 dated 03.03.2006 “under protest” and informed the department vide their letter.
The issue involved in the present case is that whether the refund claim filed by the appellant is barred by limitation, when the excise duty for which the refund sought for was paid under protest.
The sanctioning authority i.e. Assistant Commissioner of Central Excise held that the refund has been filed on 18.09.2012 and refund claim of duty paid on 30.03.2006 i.e. after more than 6 years. Being aggrieved by the Order-in-Original, appellant filed appeal before Commissioner (Appeals) who upheld the Order-in-Original vide the impugned order. Hence, the present appeal was filed by the appellant.
Sachin Chitnis and Kiran Charan, Counsels, who appeared on behalf of the appellant submitted that the amount was voluntarily deposited but „under protest‟ at the behest of the department. Therefore, limitation under section 11B is not applicable. It was further submitted that that even in their own case this Tribunal vide order No. A/11551/2023 dated 21.07.2023 held that the limitation is not applicable eve, in a case where the under-protest letter was not submitted but the duty was paid on the objection of the audit party and subsequently the issue is already in favour of the assessee.
R K Agarwal, superintendent (AR), who appeared on behalf of the revenue reiterated the findings of the impugned order.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “We find that the appellant had paid the duty on the behest of the audit objection which itself is a payment of duty under protest. Moreover, the appellant has also clearly mentioned in their TR-6 challan that the payment of duty is under protest. The appellant has also submitted a letter declaring that such payment of duty is under protest. In this position limitation provided under section 11B is not applicable for refunding the Excise Duty.”
“We are of the view that merely by filing the appeal, appellant’s refund cannot be with held which has been clarified by the Central Board of Excise Customs in various circulars from time to time, that unless until stay is obtained from the Higher Court the refund cannot be kept pending. Therefore, on both the counts, we are of the view that appellant is entitled for refund” the Tribunal concluded.
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