ORDER : 1. By way of this appeal, the appellant has challenged the judgment and order of the Customs, Excise & Service Tax Appellate Tribunal whereby the Tribunal has reversed the view taken by the Commissioner (Appeals) and allowed the appeal of the department. 2. This Court while admitting the appeal on 8.11.2016, framed following substantial questions of law:— “(3.1) Whether the learned CESTET was correct and justified in ignoring that the amounting of Rs. 3,53,171/- besides having paid through PLA was also debited from CENVAT credit?” (3.2) Whether the learned CESTAT was justified and correct in holding that the payment of the same duty paid out of PLA from the payment of Rs. 4 lac per treasury challan TR-6 “under protest” is without any indicate of protest from PLA extract. 3. Counsel for the appellant has taken us to the order of Commissioner whereby while considering the case of the appellant Commissioner (Appeals) has observed as under: “5. I have gone through the case record, submissions made by the appellant in appeal memorandum and at the time of personal hearing. I find that, the refund claim has been rejected on the ground of limitation. The fact that the amount was paid through PLA as well as CENVAT Credit account is not under dispute. The appellant has first deposited the Rs. 400000/- through TR-6 challan in PLA, while making such they mentioned “under protest” and while making debit entry for Rs. 353171/- they have not mentioned “under protest”, therefore the debit made in PLA was not treated as debit under protest. In this regard, I find that merely on the ground that while making debit entry in PLA, the Appellant has not mentioned the words “under protest” and without considering the fact that while making deposit through TR-6, they mentioned “under protest”, denial of refund claim on ground of limitation is not sustainable. The Adjudicating Authority has not given any specific finding as to why the deposit through TR-6 challan under protest is not being considered deposit under protest. In view of these facts, I agree with the Appellant contention that they have deposited Rs. 400000/- amount in Govt. account under protest and utilized the same under protest, they filed refund claim only for Rs. 353171/- which was paid double to the Govt., therefore, the limitation prescribed under Section 11-B (1) is not applicable. In view of these facts, I agree with the Appellant contention that they have deposited Rs. 400000/- amount in Govt. account under protest and utilized the same under protest, they filed refund claim only for Rs. 353171/- which was paid double to the Govt., therefore, the limitation prescribed under Section 11-B (1) is not applicable. Thus, I find that rejection of refund claim on the ground of time bar is not sustainable law. Accordingly, I set aside the same.” and further contended that earlier also the order which came to be decided, wherein operative part reads as under:— (I) I hereby confirmed Central Excise demand of Rs. 16,24,872/- (Rupees sixteen lac twenty thousand eight hundred seventy two only) against the assessee and order for recovery along with interest @ 24% per annum (as per the details given in enclosure ‘A’ to the show cause notice) under Section 11A(1) of the Central Excise Act, 1944 read with Rule 49, 173G of the erstwhile Central Excise Rules, 1944.” 4. He has further contended that the issue arises in the petitioner was required to debar from taking CENVAT credit pursuant to the order passed on 19.02.2001 at (Annex-4). 5. Therefore, while depositing Rs. 400000/- specifically says under protest. However, oversight while depositing the same amount while exercising their CENVAT Credit on 26.04.2001 with protest was not written, reads as under: Date and Sr. No. of entry Particulars of document Credit/Debit Basic Excise Duty Credit 6(i) Debit 6(ii) Balance 6(iii) 10 of 26.4.2001 To Invoice 865 59887 11 of 26.4.2001 To Invoice 866 65022 12 of 26.4.2001 To Invoice 867 57277 13 of 26.4.2001 To Invoice 868 60127 14 of 26.4.2001 To Invoice 869 62169 15 of 26.4.2001 To Invoice 870 48689 353171 54632 16 of 30.4.2001 To 25186 29496 6. Was not deposited under protest. However, in spite of the Commissioner (Appeals) order the department challenged the same before the Tribunal. Tribunal while considering the matter, observed as under:— “6. We have carefully considered the submissions from both sides and perused the records. It is not disputed by the respondents that there were defaults in payments of duty during certain period and there was debarment order issued by the competent authority in pursuance of powers vested under the Central Excise Rules. Tribunal while considering the matter, observed as under:— “6. We have carefully considered the submissions from both sides and perused the records. It is not disputed by the respondents that there were defaults in payments of duty during certain period and there was debarment order issued by the competent authority in pursuance of powers vested under the Central Excise Rules. It is also not disputed by the respondents that they have not filed any appeal against this order, though the same was appealable. It appears that the decision of Larger Bench of the Tribunal involved a case where there was no specific order of debarment which has not been followed by the assessee. We further find that the debarment order has been issued validity debarring them using the credit for two months. By implication, the credit barred from utilization was available after two months and therefore matter requires regularization. Therefore, the respondents are directed to pay the interest as demanded in the order of the original authority. The demand of duty equivalent to credit which was debarred by two months and allowed to be utilized thereafter will amount to double payment. We therefore restore the order of the original authority in so far as it related to demand of interest for two months only. 7. Regarding the second appeal challenging the allowing the refund of Rs. 3,53,171/- which was paid on 24.6.01, we find that the show cause notice itself demanded only the amount of Rs. 16,24,872/- on the ground that the same was paid using credit. We have not been shown that the respondents has paid another amount of Rs. 3,53,171/- thereafter. Therefore, we are unable to find the basis on which the Commissioner (Appeals) came to the conclusion that there was double payment. He only refers to the payment of Rs. 4 Lakhs under TR-6 Challan which has been taken as credit in PLA. The debit has been made, as per PLA extracts enclosed for an amount of Rs. 3,53,171/- on 24.6.01 Further, we find that original authority has taken the stand that Rs. 3,53,171/- was not paid under protest and there is no indication of protest from the PLA extracts. Therefore, the order of the Commissioner (Appeals) sanctioning the refund on the ground that there was double payment is erroneous. 3,53,171/- on 24.6.01 Further, we find that original authority has taken the stand that Rs. 3,53,171/- was not paid under protest and there is no indication of protest from the PLA extracts. Therefore, the order of the Commissioner (Appeals) sanctioning the refund on the ground that there was double payment is erroneous. The order of the Commissioner (Appeals) cannot be sustained and the same is set aside and the order of the original authority is restored.” 7. Counsel for the appellant has relied upon decisions in case: 1. Shree Shyam Filaments v. Commissioner of Central Excise, Jaipur, 2014 (303) E.L.T 195 (Raj.), wherein it has been observed as under:— 16. In Mafatlal Industries' case (supra), after taking note of the contentions in regard to this Rule 233B, the Constitution Bench laid down the Law in the following:— 85. The rule no doubt requires the assessee to mention the “grounds for payment of the duty under protest” but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him-and that acknowledgment shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as proved, by Rule 233B. 17. 17. The case of India Cements Ltd. (supra) was, of course, decided before Mafatlal Industries’ case and related to the then applicable Rule 11 of the Rules of 1944 but, had been a case where the claim of refund was similarly rejected on the ground of being barred by time. Therein, the duty was paid for the period 4-7-1974 to 1-3-1975. There had been a communication dated 11-6-1974 from the assessee raising objection that duty on packing charges of superfine cement was not leviable. The Hon'ble Court held that the letter raising all possible contentions against the levy in question was in the nature of protest. The relevant part of the observations and findings of the Hon'ble Apex Court in India Cements Ltd. could be noticed as under:— 7. We heard learned counsel for parties. It is not in dispute that the duty was paid for the period from July 4, 1974 to March 1, 1975. If it was paid under protest, the orders of the authorities cannot be sustained. It is, therefore, necessary to refer to the contents of the letter dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally said: If the department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges. 10. We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty. 18. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty. 18. In ITC Ltd. (supra), the Hon'ble Madras High Court took note of the observations of the Hon'ble Supreme Court in Mafatlal Industries and said, ……The observation in the said paragraph “any person paying the duty under protest has to follow the procedure prescribed by the rule” does not mean that Rule 233B could be construed in a narrow, pedantic or hyper technical manner. In our opinion Rule 233B, as interpreted by the decisions of the Supreme Court referred to above, only mean that substantively there has to be a protest in writing. In the present case, the CEGAT has admitted the correspondences between the assesses and the revenue, and in our opinion that is the substantive protest in writing. 19. Therein, the Hon'ble Court further observed that Rule 233B cannot control the full effect of the proviso to Section 11-B(1) and said, — “14. In our opinion Rule 233-B cannot control the full effect of the proviso to Section 11B-(1). A rule made under the Act cannot limit a provision in the Act itself. It is well settled that a rule made under an Act will not be valid if it conflicts with or is in derogation to a section in the Act vide [C.I.T v. S. Chinappa Mudaliar, (1969) 1 SCC 591 : AIR 1969 SC 1068 ]. Hence, a rule should not be construed in a manner that it conflicts with a Section of the Act.” 2. Lloyds Steel Industries Ltd. v. Union of India, 2009 9246) E.L.T 114 (Bom), wherein it has been observed as under:— “8. Learned Senior Counsel Shri Bhangde submitted that in view of law laid down in the above referred decisions, even during the period of two months for which facility of payment of Central Excise duty on fortnightly basis was withdrawn, the assessee was entitled to use CENVAT credit for payment of Central Excise duty on clearance of excisable goods from its factory and, therefore it is payed that petition may be allowed by making rule absolute in terms of prayer clause (1). 10. 10. We have considered the contentions of the learned respective Counsel for the parties, Since it is not in dispute that the issue in question stands covered and concluded by the decisions of the Kerala High Court as well as larger Bench of the Tribunal, which have reached finality, it is not necessary for us to re-consider the same, particularly when the learned Assistant Solicitor General has specifically admitted that the law laid down by the Kerala High Court, followed by the larger Bench of the Tribunal, squarely applies to the case of the petitioners. Therefore, we quash and set aside the impugned communications dated 8-1-2001, 22-1-2001 and 29-1-2001 issued by the respondent Nos. 4 and 5 and declare that the petitioner No. 1 was entitled to utilise the CENVAT credit for payment of Central Excise duty on the clearance of final products for the relevant period.” 3. Indian Farmers Fertilisers Co-op. Ltd. v. CMMR. (K-II) Central Excise, 2016 (331) E.L.T 386 (All), wherein it has been observed as under:— “7. A constitutional Bench of the Supreme Court in Mafatlal Industries Limited v. Union of India, (1997) Vol. 89 E.L.T page 247, held: “83. It is then pointed out by the learned Counsel for the petitioners-appellant that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11-B and the expression “relevant date” has been defined in Clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under Clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that Clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within is months from the date of payment of duty. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11-B (as amended in 1991) expressly provides that “the limitation of six months shall not apply where any duty has been paid under protest”. Now, where 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. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11B along with the definition of “relevant date”, there is no room for any apprehension of the kind expressed by the learned Counsel. 84. It was then submitted that Rule 233B which prescribes the procedure to be followed in cases where duty is paid under protest requires the assessee to state the grounds for payment of duty under protest and that it may well happen that the authority to whom the letter of protest is submitted may refuse to record it, if he is not satisfied with the grounds of protest. In our opinion, the said apprehension is not well-founded. Sub-rules (1), (2) and (3) of Rule 233B read as follows: “Rule 233-B. Procedure to be followed in cases where duty is paid under protest.-(1) Where an assessee desires to pay duty under protest he shall deliver to the proper officer a letter to this effect and give grounds for payment of the duty under protest. (2) On receipt of the said letter, the proper officer shall give an acknowledgement to it. (3) The acknowledgement so given shall, subject to the provisions of the sub-rule (4), be the proof that the assessee has paid the duty under protest from the day on which the letter of protest was delivered to the proper officer.” 85. The rule no doubt requires the assessee to mention the “grounds for payment of the duty under protest” but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter to protest when delivered to him-and that a acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure proscribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B.” 8. Counsel for respondent has relied upon the decision of Bombay High Court in Synex Pharmaceuticals Pvt. Ltd. v. Commr. Of C. Ex., Mumbai-V, 2015 (323) ELT 310 (Bom), wherein it has been observed as under:— “6. We see no merit in the above contention. In the present case by an order dated 4-12-2002, the assessee's facility to pay duty on fortnightly basis was withdrawn and the assessee was directed to pay duty on each consignment basis. Admittedly, the assessee has not challenged the said order dated 4-12-2002 and in gross violation of the aforesaid order continued to pay excise duty on fortnightly basis by debiting the Cenvat Credit in the RG 23 and PLA accounts. The cases relied upon by the counsel for the assessee are distinguishable on facts. In all those cases, the order withdrawing the facility of paying duty on fortnightly basis was challenged and in the meantime clearances were effected by paying duty on each consignment basis by debiting the Cenvat credit balance> in the respective accounts maintained by the assessee. The cases relied upon by the counsel for the assessee are distinguishable on facts. In all those cases, the order withdrawing the facility of paying duty on fortnightly basis was challenged and in the meantime clearances were effected by paying duty on each consignment basis by debiting the Cenvat credit balance> in the respective accounts maintained by the assessee. In the present case, the assessee has neither challenged the order withdrawing the facility to pay duty on fortnightly basis nor paid duty on ‘each consignment basis. Thus, the decisions relied upon by the counsel for the assessee do not support the case of the assessee. 7. In these circumstances, no fault can be found with the decision of the Tribunal in confirming the orders passed by the authorities below.” 9. Counsel for the respondent has relied upon case of Elson Packaging Industries Pvt. Ltd., 2010 (257) ELT 509 (Guj.) wherein it has been observed as under:— “2. On going through the impugned order of the Tribunal it is apparent that on plain reading of provisions of Rule 173-G(1)(e) of the Central Excise Rules, 1944 (the Rules) there is no infirmity in the order of the Tribunal which would give rise to any question of law. The Tribunal has correctly read the rule to mean that out of two different modes of payment of duty viz. (1) by debit to account current, or (2) while utilising Cenvat credit as provided in Rule 173G(1)(b) of the Rules one of the modes viz. By utilising the Cenvat credit, is not permitted for the limited period during which a manufacturer defaults in terms of Rule 173G(1)(e) of the Rules and forfeits the facility to pay the dues in installments for a period of two months. This prohibition per se does not take away or affect the right of the appellant assessee to Cenvat credit which may be available to him in accordance with Cenvat Credit Scheme and there is no conflict between the rules commencing from Rules 57A to 57V of the Cenvat Credit Scheme and Rule 173G of the Rules. 10. We have heard counsel for both the parties. 11. From the record it is very clear that pursuant to the order passed by the authority suspending CENVAT Credit on 19.02.2001 (Annexure-4) was period of two months. 12. In that view of the matter, the amount of Rs. 10. We have heard counsel for both the parties. 11. From the record it is very clear that pursuant to the order passed by the authority suspending CENVAT Credit on 19.02.2001 (Annexure-4) was period of two months. 12. In that view of the matter, the amount of Rs. 400000/- which was deposited vide TR-6 Challan (Annexure-5), there cannot be two duplex of payment of tax. The limitation period would start not from the date of deposit but from the date of the decision by Commissioner (Appeals) which was decided on 21.04.2006 (Annexure-3) 13. In that view of the matter, we are of the considered opinion that even on limitation, the appellant has good case. The appellant will be given CENVAT Credit and if the application is made, immediately effect will be given. 14. Therefore, issue is answered in favour of the assessee. 15. The appeal is allowed.