Order Date: 15 September 2022

Facts-

• The Appellant, Rayban sun optics India Pvt. Ltd. has filed this appeal challenging the order dated 01.08.2018 of the Commissioner (Appeals) by which the refund of interest deposited by the appellant has been denied to them.
• The Appellant under a litigation paid demand of Rs.16,89,669/- along with interest and equal penalty. The amount of Rs.16,89,669/- was deposited by the vide TR6 Challan dated 8.2.2003. Thereafter the appellant paid the interest vide TR6 Challan dated 6.1.2006 in view of defaulter notice issued to them.
• Ultimately the demand was set aside by this Tribunal dated 31.3.2012 and the same was also dismissed by the Hon’ble High Court vide its order dated 21.4.2017.
• After the dismissal of the Department’s Appeal by the Hon’ble High Court, within one year the appellant file refund claim of duty of Rs.16,89,669/- which was deposited by the appellant vide TR6 Challan dated 8.2.2003, however the same was denied to the appellant on the ground that the refund claim ought to have been filed by the Appellant within one year of Final Order of Tribunal dated 31.3.2012, which is the relevant date and a show cause notice dated 13.4.2018 was issued to the appellant proposing to reject the refund claim which was confirmed by the Order-in-Original dated 11.10.2018 and upheld by the Order-in-Appeal therein being time barred.

Issue-

• Whether the refund claim has rightly been rejected on the ground of time barred?

Order-

• The Tribunal observed that section 11B makes it clear that an application for refund of duty of excise has to be made in the prescribed form before the expiry of one year from the relevant date. As per Clause (ec) of Explanation (B) to Section 11B, in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the relevant date is the date of such judgment, decree, order or direction. No doubt, the appellant became entitled to claim the said refund post the final order of CESTAT dated 31.3.2012, however, admittedly the Revenue filed an appeal against that order before Hon’ble High Court of Rajasthan order dated 21.4.2017 dismissed that appeal. It is not disputed that the refund claim has been filed, post this dismissal of Revenue’s appeal, on 16.5.2017.
• The period of one year as per Section 11B(B)(ec) ibid is the date of decision of Hon’ble High Court and not the date of Final Order of CESTAT, as the appeal before Hon’ble High Court of Rajasthan being the one filed by the Department. Hence, the findings of authority below rejecting the refund as time barred are totally misplaced. Otherwise also, admittedly the payment of interest was made pursuant to the direction of Departmental Authorities after the issuance of Memorandum-cum-notice of demand dated 1.12.2005 therefore it cannot be considered as voluntary payment and has to be treated as payment under protest and Section 11B proviso is clear enough to say that the limitation of one year shall not apply where any duty/interest on such duty has been paid under protest.
• Therefore, the Appeal filed by the Appellant stands allowed