Pre-deposit under excise appeal is not duty; refund follows as consequential relief without Section 11B limitation.

An amount deposited during the pendency of an excise appeal under Section 35F was treated as a pre-deposit made only to pursue the appeal on merits, not as duty payment. On that basis, the refund of the deposit followed as consequential relief after the assessee succeeded in the appeal. The refund provisions applicable to duty, including the limitation under Section 11B, and the protest requirement under Rule 233B of the Central Excise Rules, 1944, did not apply to such a deposit. The refund claim was therefore not time-barred and was required to be allowed in favour of the assessee.

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Issues: Whether an amount deposited during the pendency of an appeal under Section 35F of the Central Excise Act was a pre-deposit and not duty, so that the refund claim was not governed by the limitation under Section 11B or by Rule 233B of the Central Excise Rules, 1944.

Analysis: The amount was deposited pursuant to the appellate authority's direction for the purpose of pursuing the appeal on merits. Such a payment was only a deposit of money and not a payment of duty. Once the underlying appeal had been decided in favour of the assessee, the refund of the deposit followed as a consequential relief. In that situation, the provisions governing refund of duty and the requirement of protest under Rule 233B did not apply.

Conclusion: The refund claim was not time-barred and ought to have been allowed in favour of the assessee.

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