Pre-deposit under Section 35F is not duty payment; refund follows when the underlying demand is set aside.

A deposit made under Section 35F during the pendency of an appeal is a pre-deposit to secure the appellate remedy, not payment of duty on the merits of the levy. Because it is not a duty payment, the protest requirement under Rule 233B does not apply, and the limitation under Section 11B does not govern its refund. Once the underlying demand is set aside, the pre-deposit becomes refundable, and the Revenue's objection based on duty-payment rules fails.

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Issues: Whether an amount deposited under Section 35F of the Central Excise Act, 1944 during the pendency of an appeal is to be treated as duty payment requiring compliance with Rule 233B of the Central Excise Rules and subject to the limitation under Section 11B of the Central Excise Act, 1944, or whether it is a pre-deposit refundable on success in appeal.

Analysis: A deposit made under Section 35F is a condition for pursuing the appeal and is not payment of duty on the merits of the levy. Where the amount is deposited pursuant to court or tribunal orders pending appeal, it is treated as payment under protest and formal protest under Rule 233B is unnecessary. The limitation in Section 11B does not govern refund claims arising from such pre-deposits, because the amount is not a duty payment but a pre-deposit made to avail the appellate remedy. Once the underlying demand is set aside, the deposited amount becomes refundable.

Conclusion: The refund of the pre-deposit was rightly allowed, and the Revenue's objection based on Rule 233B and Section 11B failed.

Final Conclusion: The impugned refund order was sustained and the Revenue appeal was dismissed.

Ratio Decidendi: A deposit made under Section 35F during the pendency of an appeal is a pre-deposit and not a duty payment, so the refund provisions and protest requirements applicable to duty payments do not apply to it.

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