Treatment of cenvat on inputs in case of duty under protest

If the department says that the assessee is not an eligible unit then the CENVAT credit which is not claimed by the assessee can be taken as credit before discharge on any liability raised by the department.

Mr. Praveen,

Where duty is paid under protest the final decision lies with appellate authority. Department has already objected on availability of exemption, as they are of the opinion that we are not eligible unit. Due to above objection only we are paying duty under protest. Hence the final decision referred above is that of Appellate Authority and not of the department.

As we are paying the whole duty under protest, there won't be any demand from the department.

So, whether there are any specific provisions in Central Excise Law in respect of payment of duty under protest & availability of Cenvat Credit referred above on passing of the final decision.

Rule 233B of Central Excise Rules, 1944 contained provisions relating to payment of duty under protest, but the same has not been carried over in Central Excise Rules, 2002. I cannot find any specific provisions in this regard. So any Rule, Section, Circular or case law on above subject would be helpful.