Undisposed protest against duty payment exempts refund claim from S.11B limitation, independent of third-party judgments.

SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal No.NOI-EXCUS-APPL-002-93-2025-26 dated 25/06/2025 passed by Commissioner (Appeals) Central Goods & Services Tax, Noida.

By the impugned order following has been held:-

“ORDER

I reject the appeal bearing No. 298/CE/NOIDA/APPL/GBN/2024-25 02.01.2025filed by M/s Bajaj Energy Ltd., Barkhera Kalan, Bisalpur Road, Pilibhit, U.P.- 262201 and uphold the impugned 0-1-0 dated 20/21.11.2024.”

2.1 Appellant is a power generation utility and is having Central Excise registration No.AADCB4998CEM001.

2.2 Appellant filed a refund application on 14.08.2023 under Section 11B of the Central Excise Act, 1944 seeking a refund of Rs.3,25,275/- against payment of duty paid on clearance of 'fly ash' under protest. The refund claim was arisen consequent to dismissal of department's appeal by Hon'ble Supreme Court against the judgment of the Hon'ble Madras High Court in the matter of M/s Mettur Thermal Power Station in WA No.1518 of 2015 holding that the fly ash do not fall under the category of excisable goods so as to attract levy of central excise duty.

2.3 Appellant claimed that they had paid the duty on 'fly ash' under protest and his other units, which were falling under the jurisdiction of lucknow Commissionerate. Appellant also stated that they had paid central excise duty of Rs.2,65,297/- on clearance/dumping of fly ash and Rs.59,798/- as interest on late payment of the said duty from August 2015 till June 2017.

2.4 Show cause notice dated 25.09.2024 was issued to the appellant, asking them to show cause as to why the refund claim filed by them on the basis of department's appeal being dismissed by the Hon'ble Supreme Court on 08.03.2019, against the order of Hon'ble Madras High Court in the WP 17282 of 2014 and that the refund appears to be hit by limitation as laid down under Section 118 of Central Excise Act, 1944 as the same has been filed beyond the period of one year from the date of dismissal of writ appeal filed before Hon’ble Supreme Court.

2.5 The said show cause notice was adjudicated vide the Order-in-Original dated 20.11.2024/21.11.2024 wherein relying upon the following decisions dismissed the appeal:-

 Redington India Ltd. Vs Commissioner of Customs, Chennai [2011 (269) E.L.T 233 (Tri.-Chennai)] and

 P. K. Kutty Anuja Raja & Anr vs State of Kerala & Anr (1996 SCC (2) 4961,

2.6 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been dismissed as per the impugned order referred in para-1 above.

2.7 Aggrieved appellant have filed this appeal.

3.1 I have heard Shri Jitendra Singh, learned Counsel appearing for the appellant and Shri Santosh Kumar learned Authorised Representative appearing for the revenue virtually.

3.2 Arguing for the appellant learned Counsel submits that his refund claim was in respect of duty paid under protest. The period of one year of limitation as per Section 11B of the Central Excise Act, 1944 would not be applicable in view of the proviso to said Section. He further relied upon the following decisions:-

o Ebiz.com (P) Ltd. Vs CCE- Manu/UP/3167/2016 (All.);

o 3E Infotech Vs CESTAT, Chennai 2018 (18) GSTL 410 (Mad.);

o Hindustan Cocoa Products Vs UOI 1994 (74) ELT 525 (Bom.);

o CCE Vs Pricol Ltd. MANU/TN/1261/2015 (Mad.)

o Coca Cola Beverages (P) Ltd. Vs UOI MANU/GJ/0126/2013 (Guj.);

o M/s Fujikawa Power & Ors. FO No.61041-61042/2019 dated 26.11.2019 (Tri.);

o M/s Marshall Foundry & Engg. (P) Ltd. Vs CGST FO.61058- 61061/2019 (Tri.);

3.3 Learned Authorised Representative reiterates the findings recorded in the orders of the lower authorities.

4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument.

4.2 Impugned order records as follows:-

“4.2 4.2 The question of excisability of fly ash has been put to rest by the Judgement dated 21.12.2016 of the Hon'ble Madras High Court in the matter of M/s Mettur Thermal Power Station in WA No. 1518 of 2015, which has been upheld by the Hon'b