TaxTMI 
TaxTMI 
2000 (12) TMI 686
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....he fact giving rise to this appeal, may briefly be stated are as under : 3. The respondents are engaged in the manufacture of tyres and tubes. A demand of Rs. 3,94,000/- was confirmed against them by the Assistant Commissioner, besides the imposition of penalty of Rs. 5,000/-, vide order-in-original dated 17-3-1997 for having availed the Modvat credit illegally. However, in appeal against that order by the respondents, the Commissioner (Appeals) allowed them credit of Rs. 2,97,350/- and disallowed credit of only Rs. 96,650/- and also reduced the penalty amount of Rs. 5,000/- to Rs. 4000/- vide order dated 31-3-1998. The respondents deposited Rs. 96,650/- vide debit entry No. 55, dated 16-4-1998 in RG 23A Part II. They also deposited p....
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.... 1997 (89) E.L.T. 247 (S.C.) but the Commissioner (Appeals) had failed to do so. It has been mentioned in grounds of appeal that as per provisions of Section 11B of the Act, refund claim was required to be filed within six months from the date of payment and that this period of limitation was not applicable only in those cases where the duty was paid by the assessee 'under protest' or under the order of the Court/Tribunal. The Revenue has reproduced paras 83 and 85 of the judgment of the Apex Court in Mafatlal Industries case (supra) in the grounds of appeal. Those paras read as under : "83. Where a person proposes to contest his duty liability by way of appeal revision or in the higher Court, he would naturally pay the duty, whenever he d....
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....e Commissioner (Appeals). Therefore keeping in view all these facts, the debit entry of Rs. 96,650/- and deposit of the penalty amount of Rs. 4,000/- by the respondents was not voluntary but under the order of the Commissioner (Appeals), before whom they challenged the order of the Asstt. Commissioner. They even did not accept the order of the Commissioner (Appeals) and challenged the same before the Tribunal. On acceptance of the appeal by the Tribunal on 18-12-1998 the respondents became legally entitled to credit back the amount of Rs. 96,650/- in the RG 23A Part II wherein they made the debit entry not voluntarily, but under the order of the Commissioner (Appeals). They also became entitled to the refund of penalty amount of Rs. 4,000/-....