2001 (8) TMI 748

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....t. [Order]. - This appeal has arisen for admission today. The appellant has requested for decision on merits. Since the issue involved in the appeal is in relation to refund claim filed by the appellant, there is no requirement of any pre-deposit under Section 35F of the Central Excise Act for the purpose of hearing this appeal on merits. Hence the appeal is taken up for final disposal. 2....

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.... the Central Excise Act. The appeal was decided in favour of the assessee as per order dated 27-10-1992. Subsequently the appellants filed the refund claim for refund of the aforesaid amount. The claim of refund was rejected by the Assistant Commissioner on the ground that the claim was filed beyond the period of six months prescribed under Section 11B of the Central Excise Act. This decision of t....

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.... the appellants have raised a ground that the amount deposited on 31-12-1991 was not a duty of excise but a deposit of money under Section 35F of the Central Excise Act for the sole purpose of their appeal being maintained on merits before the Commissioner (Appeals) and, therefore, the provisions of Section 11B were not applicable to any claim for refund of such amount. In support of this ground, ....

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....e amount deposited was a duty simpliciter or a mere deposit of money for purposes of Section 35F of the Central Excise Act. This being so, the question whether the party wanted to treat the deposit as one having been made 'under protest' is irrelevant. On the above question, the decision of the Gujarat High Court is pertinent. The High Court held that the amount deposited by an assessee during adj....