2005 (12) TMI 443

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....he said goods. Therefore, certain quantities of fabrics were seized and total duty liability of Rs. 7,40,833.07 was assessed by the Central excise officers. The appellants thereafter deposited the said amount in the State Bank of Bikaner & Jaipur on 21-1-91 vide TR-6 Challan. A show cause notice was issued to the appellants proposing to confiscate the seized fabrics, appropriating the amount of Rs. 7,40,833.07 voluntarily deposited by them towards duty liability and for imposition of penalty. The case was adjudicated confiscating the seized goods but allowing to be redeemed on payment of a fine of Rs. 50,000/-, imposing a penalty of Rs. 25,000/- and appropriating the amount of Rs. 7,40,833.07, which was voluntarily deposited by the appellan....

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....aim with proper officer, who will decide the issue as per provisions of Section 11B of the Central Excise Act. The appellants accordingly filed refund claim of Rs. 1,69,914.57 on 8-12-2000. This refund claim was examined by the Asstt. Commissioner and a show cause notice dated 11-12-2001 was issued to the appellants that on scrutiny of refund claim, it is observed that they had quantified the refund amount on the basis of CEGAT's Final Order but have not submitted any separate quantification chart showing quantity, value, rate of fabrics, as to how the quantum of refund amount claimed by them. The refund application in prescribed proforma has been filed by the assessee on 18-12-2001 whereas the duty was paid on 21-1-91, which has not been p....

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....duty deposited by party while pursuing appellate remedy to be considered as duty paid under protest. 3. It was pleaded on behalf of the Revenue that under Order No. 748/98-D, dated 22-9-98 [1998 (29) RLT 259], the Tribunal in Para 4.1 of the order has made it clear that, "we agree with the ld. JDR that no refund of duty can be ordered against these proceedings. The refund of duty voluntarily paid by the appellants before issue of show cause notice has to be claimed by the appellants in terms of provisions of Section 11B as held by the Apex Court in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247 (S.C.)." It was pleaded that from this decision, it is very clear that the refund is not a consequential refund. It w....

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....assessee in their reply dated 20-9-91 to the show cause notice it is necessary that the assessee should file refund claim with the proper officer, who will decide the issue as per provisions of Section 11B of the Central Excise Act, 1944". 5.  The refund claim was rejected by the original authority on the ground of time bar as the amount has not been paid under protest. He also referred to the decision of Mafatlal Industries Ltd. v. U.O.I. (supra), where it was held that "as regards time limit the second proviso to Section 11B expressly provides that limitation of six months shall not apply where any duty has been paid under protest". Thus, the refund was held to be clearly time/barred. The Commissioner of Central Excise (Appeals) h....