ORDER
K.C. Mamgain, Member (T)
1. Shri Sudeep Singh, learned Advocate, appearing for the appellants pleaded that the refund claim of Rs. 7,85,536/- filed by them was rejected on the ground of time bar. He contested the matter on the ground that impugned amount was paid under the direction of the department. They contested such payment and finally the Tribunal vide its Final Order No. A/232/2002-NB(D) dated 30-1-2002 [2002 (147) E.L.T. 195 (T)] allowed their appeal with consequential relief. He relied on the decision of the Tribunal in the cases of CCE, Hyderabad v. Cubex Tubings Ltd. – 2003 (158) E.L.T. 817 and Jayanta Glass Indus. Pvt. Ltd. v. CCE, Calcutta-III – 2002 (50) RLT 98 (CEGAT – Kol.) wherein it was held that amount deposited during investigation of a case is deemed to have been paid under protest and the refund claim of such amount is not time-barred. Under these circumstances, he requests that their appeal may be allowed.
2. Shri P.M. Rao, learned JDR appearing for the Revenue pleaded that the refund application should be considered time-barred in this case as the same was filed after the period of limitation from the date of the reversal of the impugned amount from their RG-23 Part-II. He relied on the decision of the Supreme Court in the case of Miles India Limited v. Assistant Collector of Customs 1987 (30) E.L.T. 641 (S.C.) wherein the Supreme Court has observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under Section 27(1) of the Customs Act, 1962.
3. On a careful consideration of the submissions made by both the sides, I find that in this case the question of limitation will not apply as provided under Section 11B of the Central Excise Act as the amount paid by the appellants on the direction of the department was being contested by them from the adjudicating stage till they won the appeal before the Tribunal. Therefore, such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order. The appeal is, therefore, allowed.