2002 (1) TMI 143 - AT - Central Excise

Tribunal clarifies pre-deposit vs. duty payment for refund eligibility under Section 35F

The Tribunal affirmed the Commissioner (Appeals) decision, holding that pre-deposit under Section 35F is not considered duty payment, thus Section 11B ... Refund - Limitation Issues involved: Interpretation of Section 35F of the C.E. Act, 1944 regarding pre-deposit as payment of duty, applicability of Section 11B, and entitlement to refund without protest under Rule 233B.Summary:1. The Revenue Appeal challenged the Order-in-Appeal upholding that pre-deposited amount under Section 35F was not payment of duty, relying on judgments including Suvidhe Ltd. and General Engineering Works. The Commissioner (Appeals) referenced Mafatlal case, stating duty paid under protest applies to pre-deposit, entitling refund. 2. Revenue argued duty debited in PLA under Section 35F is not akin to payments under court orders, thus subject to Section 11B limitations, requiring protest under Rule 233B for refund eligibility.3. The department reiterated its stance, citing para 83 of Mafatlal Industries Ltd. judgment, asserting that even if credited in PLA without protest, Section 11B applies, denying refund entitlement.4. Respondents sought adjournment but did not appear.5. Considering Bombay High Court and Mafatlal Industries Ltd. judgments, the Tribunal rejected adjournment, noting previous Stay Order and various supportive judgments, concluding that pre-deposit under Section 35F is not duty, hence Section 11B does not apply, affirming the Commissioner (Appeals) decision based on legal precedents.This judgment clarifies the distinction between pre-deposit under Section 35F and duty payments under court orders, emphasizing the necessity of protest under Rule 233B for refund eligibility, in line with established legal interpretations and precedents.