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2. The appellants filed their refund claim for Rs.25,33,720 on 22.11.2007. The Revenue issued SCN on 14.01.2008, seeking to know as to why the refund claim should not rejected. After due process vide OIO dated 14.11.2008, the refund claim was rejected. Being aggrieved the appellants filed their appeal before the Commissioner (Appeals), who upheld the OIO and dismissed the appeal filed by the appellant. Against this OIA, the appellant filed their appeal before the Tribunal, which vide Final Order No. FO/76835-76838/2018 dated 29-10-2018, held that no Service Tax was required to be paid during the impugned period and remanded the matter back to the Adjudicating authority to verify the claim of the appellant about making their payment 'Under Protest'.

(6) The Appellant again submits that they have already filed the protest letter at the time or before making the first deposit. Thus, once a protest letter is filed, all subsequent payment for the similar matter shall be deemed to be treated as payment made under protest and shall be covered under the first letter of protest filed. Thus, the Appellant is not required to file protest letter again and again as one protest letter is sufficient for subsequent payments also. (7) To substantiate the above said proposition, the Appellant relies upon the case of Niphad SSK Ltd. V. CCE, Nashik 2017 (358) E.L.T. 738 (Tri. - Mumbai) point No. 4 wherein it was observed by the Hon'ble Tribunal that once the Service Tax Appeal No. 76503 of 2024 letter under protest have been submitted, the subsequent payment made are also covered under the protest letter filed. (8) On the basis of aforesaid relied upon judicial pronouncement, the Appellant submits that, since one protest letter has already been filed in due course, the rejection of refund of Rs. 8,05,266/- for want of protest letter again is ex- facie arbitrary and not tenable. Hence, subsequent payment after submission of letter of protest is itself a sufficient compliance. Accordingly, refund claim shall not be hit by time barred provision. Therefore, the impugned Order is liable to set aside on this ground alone.

5. The Appellant further relies on the cases of CCE, Aurangabad v. Klasspak Pvt. Ltd. reported at 2005 (179) E.L.T. 365 (Tri.- Mumbai), wherein it has been held that when matter is under litigation, payment of duty made is deemed to be payment under protest, even though there is no express mention of payment having been made under protest and in such circumstances, the limitation period u/S 11B for its refund would not be applicable.

6. Further, in the case of Opel Alloys Pvt. Ltd. Vs. CCE, Ghaziabad reported at 2010 (249) ELT 408, the Hon'ble Bench has observed that:

"3.2. The refund claim has arisen when the Commissioner's order was set aside by the Tribunal vide final order dated 28-10-04. The Tribunal in the case of Surbhi Enterprise v. CCE, Ahmedabad (supra) has held that when the duty paid during investigation has been contested throughout from the original stage, its payment has to be treated as under protest. Same view has been taken by the Tribunal in the case of G.S. Radiators Ltd. v. CCE, Ludhiana reported in 2005 (179) E.L.T. 222 (Tri.- Del.) and Laxmi Board & Paper Mills Ltd. v. CCE, Mumbai reported in 2007 (208) E.L.T. 384 (Tri.-Mumbai). Hon'ble Supreme Court, in Para 83 of its judgment in case of Service Tax Appeal No. 76503 of 2024 Mafatlal Industries Ltd. v. UOI reported in 1997 (89) E.L.T. - 247 (S.C.) has observed that - "when a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest". Relying on these observations of Hon'ble Supreme Court, the Tribunal in the cases of CC (Prev.), Jamnagar v. Continental Petroleums Ltd., reported in 2009 (234) E.L.T. 333 (Tri.- Ahmd.) and CCE, Aurangabad v. Klasspak Pvt. Ltd. reported in 2005 (179) E.L.T. 365 (Tri.-Mumbai), has held that when matter is under litigation, payment of duty made is deemed to be payment under protest, even though there is no express mention of payment having been made under protest. Thus in this case, the debit of the disputed amount on 4-1-05 in RG 23A Pt. II account has to be treated as having been made under protest and hence the limitation period under Section 11B for its refund would not be applicable."