M/S. RAYMOND LTD. Vs. CCE, BHOPAL

JUDGEMENT

(1.) THE facts leading to filing of this appeal are, in brief, as under: -

(2.) MS . Rajeshwari K.G., Advocate, the learned counsel for the appellant, pleaded that the appellant had reversed Cenvat Credit on the instructions of the Departmental Officers, that in view of these circumstances, even if the Appellant did not filed formal protest, the reversal of the credit has to be treated as under protest and, therefore, the limitation period prescribed under section 11B would not apply, that in this regard she relies upon the judgment of the Tribunal in the cases of Opel Alloys Pvt. Ltd. Vs. Commissioner of Central Excise, reported in : 2010 (249) E.L.T. 408, Laxmi Board & Papers Mills Ltd. Vs. Commissioner of Central Excise, Mumbai, reported in : 2007 (208) E.L.T. 384 and Commissioner of Customs (Airport), Chennai Vs. Atlas Granites, reported in : 2004 (173) E.L.T. 25, wherein it was held that the amount deposited towards the duty during investigation on the directions of the Department has to be treated as paid under protest and hence the limitation period under section 11B for its refund would not be applicable, that in any case, in view of the judgment of Hon'ble Allahabad High Court in the case of Commissioner of Central Excise Vs.

(3.) MS . Rajeshwari K.G., the learned counsel for the appellant, in rejoinder pointed out to Para 33 on Hon'ble Gujrat High Court judgment in the case of Indo -Nippon Chemicals Co. Ltd. (Supra), and pleaded that in Para 33 of the judgment of Hon'ble Court has clearly observed that when the reversal of Modvat Credit was on instructions or insistence of the Departmental Officers and subsequently the assessee discovered that mistake and realized that reversal was not required, the Provision of Section 17 of the Limitation Act would become applicable and the limitation period for filing refund would start from the date on which the assessee discovered the mistake and that in this case if the date on which the appellant discovered their mistake is treated as the relevant date, both the refund claims would be within time. She also emphasized that the appellant in their reply to the Show Cause Notice had clearly stated that the reversal was on account of instructions of the Department.