ORDER
M.V. Ravindran, Member (J)
1. This appeal is filed by the revenue against order in appeal dated 27th April, 2004 which set aside the order in original that rejected the refund claim of the respondent.
2. The relevant fact that arise for consideration are respondents availed modvat credit on FRP storage tanks in the month of July 1995. The RT-12 in the month of July 1995 was scrutinized by the range officers and they directed the appellants to reverse the modvat credit availed on such FRP storage tank on the ground that the issue is pending before the adjudicating authority for the earlier period. The respondent reversed the modvat credit in PLA vide entry dated 31/01/96 and immediately on 6th February 96, the respondent submitted that the said reversal be treated as under protest. The respondent filed refund claim of the said amount on 23/04/96 which was returned back to them by the authorities on 08/05/96 indicating that the identical issue for earlier period is pending for adjudication. The pending litigation was decided by the adjudicating authority in favour of the respondent vide order dated 31/05/96. Revenue agitated this matter upto Tribunal. The Tribunal vide its order dated 02/12/99 dismissed the appeal. The respondent subsequently on 31/05/2000 resubmitted the refund claim of Rs. 93,000/- (Rupees Ninety Three Thousand only) to the authorities. The said refund claim was rejected by the adjudicating authority vide his order in original dated 04/10/2000. The respondent preferred an appeal to the Commissioner (Appeal) who allowed their appeal vide order dated 27/04/04. Hence this appeal.
3. The learned DR submits that the Commissioner (Appeals) has erred in granting the refund claim to the respondent. It is his submission that the issue is time bar in as much that the reversal of duty was made by the respondent on 31/01/96 while refund claim is filed by them on 31/05/2000. It is also his submission that the respondent were not eligible for this in as much that the order in original dated 31/05/96 was not appealed by them.
4. Learned advocate appearing for the respondent submits that there is no error in order in appeal as the duty which has been paid ‘under the protest’ remained as till it is set aside by a separate order.
5. Considered the submissions made at length by both sides and perused records. I find from the records that the issue of modvat credit on the FRP storage tanks to the appellants was being disputed from 1995 till 1999 at the various forums. The issue is now finally settled in favour of the respondent. Though the revenue has preferred a reference application before the Hon’ble High Court as regards the question of law, there is no stay which has been granted against the order which is in favour of respondent. In the instant case, I find that the amount of Rs. 93,000/- (Rupees Ninety Three Thousand only) was paid by the respondent on 31/01/96 and protested the same immediately vide their letter dated 06/02/96. This an admitted fact that respondent had intimated that the amount paid is under protest. If that be so, the amount which is paid by the respondent now cannot be said to be without any protest. Since the amount is paid under protest the provisions of Section 11B would apply, which indicate “once the amount is paid under protest, there is no question of any time limitation for claiming the refund. Since the issue on merits is clearly settled in favour of the respondent, the refund claims filed by them are not liable for rejection. I find that the Commissioner (Appeal) has correctly held in favour of the respondent.
6. Accordingly, in the facts and circumstances of the case, I do not find any reason for interference in the order of the Commissioner (Appeal). The appeal filed by the department is dismissed.
(Dictated and pronounced in the open court)