Page 97 - ELT_1st July 2020_Vol 373_Part 1

2020 ] STEEL AUTHORITY OF INDIA LTD. v. UNION OF INDIA 7

subject to time-bar provisions of Section 11A of the Act. Ld. SDR has ar-
gued that, just as a retrospective demand of duty is subject to limitation
under Section 11A, a refund claim based on retrospective exemption should
be subject to time-bar under Section 11B. We appreciate this argument and
observe that J.K. Spinning & Weaving Mills (supra) is yet another assertion,
by the apex Court, of the rule of strict construction and application of limi-
tation provisions.
14. We have made a mention of the Modvat credit issue raised in this case.
This issue has already been settled by this Bench as per Final Order No.
1701/01, dated 28-9-2001 in Appeal No. 1896/97-Md. reported in 2002 (139)
E.L.T. 415 (Tri. - Chennai) [Steel Authority of India v. Commissioner of Central
Excise, Coimbatore], whereby denial of Modvat credit to the extent of
Rs. 85,91,276/- to the appellants was affirmed and the demand raised in
corrigendum issued by the authorities was set aside.
15. In the result, the rejection of refund claim for the period 1-1-94 to 17-5-
94 as time-barred and the sanction of refund for the period 18-5-94 to 12-10-
94 are upheld. Any recovery of duty by way of adjustment against the re-
fund so sanctioned shall be in terms of Final Order No. 1701/01 ibid. Sub-
ject to this modification, the impugned order is affirmed and the appeal is
rejected.”
3. Aggrieved by the same, the Assessee has preferred this Writ Petition
before this Court.
4. The Learned Counsel for the petitioner Ms. P. Jaya Lakshmi submit-
ted that the very purpose of exemption granted in the instant case by the Central
Government itself through Exemption Order dated 21-9-1994 followed with its
clarification on 30-6-1995 was frustrated by the Adjudicating Authority by deny-
ing the refund for the period from 1-1-1994 to 17-5-1994 merely on the ground of
limitation under Section 11B of the Act. She submitted that Section 11B of the Act
makes an exception for the excise duty paid under protest and no limitation then
applying. She has drawn the attention to Second Proviso to [Section] 11B which
clearly stipulates that limitation shall not apply to the duty or interest that has
been paid ‘under protest’.
5. The Learned Counsel for the petitioner urged that the ad hoc or spe-
cific exemption is for whole of the quantity and the Assessee was not liable to
pay any Excise duty on such clearances of 2640 M.Ts. made by the Assessee. The
entire duty paid by the Assessee which was necessary for the clearances of the
goods at that point of time on the said quantity deserves to be wholly refunded
and the duty paid for the period prior to such Exemption Notification has to be
refunded to the Assessee treating the same as paid ‘under protest’. She urged
that it should be treated only as a payment made ‘under protest’ and it has to be
refunded by the Central Excise Department. By not doing so, the exemption
granted to the Assessee was negatived by the Adjudicating Authority and the
Assessee Company being a Government of India Undertaking had to litigate
against the Excise Department before this Court.
6. Per contra, Ms. Hema Murulikrishnan Learned Counsel for the Reve-
nue Department submitted that the Assessing Authority was bound by the pro-
visions of law under the limitation prescribed under Section 11B of the Act. Un-
less the payment is made specifically under protest, the Proviso would not apply
and the Assessing authority was justified in refusing to the extent which is
barred by limitation. She submitted that duty in question was paid by the As-
sessee at the time of clearance to the goods under the self assessment scheme

EXCISE LAW TIMES  1st July 2020  97