Statutory pre-deposit is not duty, so refund restrictions and protest requirements do not apply.

A statutory pre-deposit made under Section 35F of the Central Excise Act is not payment of duty and therefore does not attract the refund restrictions in Section 11B or the protest requirement under Rule 233B. The amount retained its character as a pre-deposit even though it was credited in the PLA without protest, so the refund claim could not be rejected on that basis. The order directing refund of the pre-deposit was sustained and the Revenue appeal failed.

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Issues: Whether an amount deposited under Section 35F of the Central Excise Act, 1944 is to be treated as duty so as to attract Section 11B and the requirement of protest under Rule 233B of the Central Excise Rules.

Analysis: The amount was deposited only as a statutory pre-deposit to meet the requirement of appeal and was not a payment of duty on the tax liability. Such a deposit is outside the refund restrictions applicable to duty payments under Section 11B, and the absence of protest does not alter its character as pre-deposit. The Tribunal applied the settled position that the refund claim could not be denied on the ground that the amount was credited in the PLA without protest.

Conclusion: The pre-deposit was not duty, Section 11B was not attracted, and the refund was admissible.

Final Conclusion: The Revenue appeal failed and the order directing refund of the pre-deposit was sustained.

Ratio Decidendi: A statutory pre-deposit made under Section 35F is not payment of duty and therefore is not governed by the refund restrictions applicable to duty under Section 11B or by the protest requirement for duty payments.

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