Appeal allowed for refund, duty not legally payable, immediate payment directed. Commissioner cites precedents.

The appeal was allowed, rejecting the original order and directing immediate payment of the refund amount to the appellant. The Commissioner found the appellant entitled to a refund as the duty was not legally payable, citing precedents supporting the claim that when duty is not legally payable, it becomes a pre-deposit and refund should be granted without elaborate procedures. The Assistant Commissioner was criticized for not following higher appellate decisions, and the appellant was relieved of undue hardships by the decision.

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Issues involved: Appeal against rejection of refund claim for customs duty u/s 11B of Central Excise Act, 1944.

Summary:
The appellant, engaged in manufacturing excisable goods as 100% EOU, sought refund of unutilized deposit amount in PLA after conversion to DTA. Assistant Commissioner rejected refund claim for customs duty, stating it's not a specified duty u/s 11B. Appellant contended that advance deposit is refundable, citing precedents. Commissioner found appellant entitled to refund as duty was not legally payable, directing immediate payment from PLA account along with interest. Precedents like Eastern Agency v. CCE and Atul Industries v. CCE supported the appellant's claim, emphasizing that when duty is not legally payable, it becomes a pre-deposit and refund should be granted without elaborate procedures. The Commissioner criticized the Assistant Commissioner for not following higher appellate decisions, holding that the appellant should not have faced undue hardships if precedents were considered. The appeal was allowed, rejecting the original order and directing immediate payment of the refund amount to the appellant.

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