2001 (8) TMI 748 - AT - Central Excise

Appellate Tribunal grants refund claim under Central Excise Act, ruling deposit not duty.

The Appellate Tribunal CEGAT, New Delhi allowed the refund claim of the appellants, determining that the deposit made under Section 35F of the Central ... Stay/Dispensation of pre-deposit - Refund Issues:Refund claim filed beyond the prescribed period under Section 11B of the Central Excise Act.Whether the deposit made by the appellants was a duty or a deposit of money under Section 35F of the Central Excise Act.Applicability of Rule 233B of the Central Excise Rules to the refund claim.Analysis:The appeal before the Appellate Tribunal CEGAT, New Delhi arose concerning a refund claim filed by the appellants related to the removal of parts of Test Bench used for testing Fluid Coupling without payment of duty, claiming exemption under Notification No. 217/86-C.E. The jurisdictional Assistant Collector confirmed the duty demand, which was later appealed to the Collector (Appeals) and decided in favor of the assessee. Subsequently, the appellants filed a refund claim for the amount deposited under Section 35F of the Central Excise Act, which was rejected by the Assistant Commissioner and the Commissioner (Appeals), leading to the present appeal before the Tribunal.The crucial issue revolved around whether the deposit made by the appellants was a duty or a mere deposit of money under Section 35F. The lower authorities contended that since the letter of protest was not filed before or at the time of deposit, the payment could not be considered as made 'under protest,' rendering the refund claim time-barred under Section 11B. However, the appellants argued that the deposit was not a duty but a deposit for the sole purpose of maintaining their appeal on merits, citing relevant case law to support their position.During the hearing, the Tribunal considered the nature of the deposit crucial in determining the applicability of Section 11B and Rule 233B. The Tribunal relied on the decision of the Gujarat High Court and its own precedent, emphasizing that the deposit made under Section 35F was not a duty but a mere deposit of money. Therefore, the limitation provisions of Section 11B and Rule 233B did not apply to the refund claim in question. The Tribunal held that the refund claimed by the appellants should be allowed as a consequential relief following the final order passed by the Collector (Appeals) in favor of the party, setting aside the impugned order and allowing the appeal with consequential relief to the appellants.