2008 (12) TMI 579

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....how cause notice was issued to the Respondent for appropriation of the duty already deposited by the Respondent and also imposing penalty on them under Section 11AC treating the shortage of the marble slabs as clandestine removal. The Additional Commissioner vide order-in-original dated 24-9-03 confirmed the duty demand and ordered appropriation of the amount already paid by the Respondent towards the duty and beside this, penalty of equal amount was imposed under Section 11AC. The Respondent filed before the CCE (Appeals) and the Commissioner (Appeals) vide order-in-appeal dated 7-5-04 allowed the appeal following Hon'ble Supreme Court's judgment in case of Aman Marble Industries P. Ltd. v. CCE, Jaipur reported in 2003 (157) E.L.T. 393 (S.....

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....holding that the Respondent's activity does not amount to manufacture and does not attract any Central Excise Duty was passed on 7-5-04 and the refund claim was filed on 23-5-06, the refund claim is time barred and the same has been rightly rejected by the Deputy Commissioner. 3. Shri Atul Gupta, Company Secretary, the learned Counsel for the Respondent pleaded that the amount paid was in the nature of pre-deposit and, therefore, in view of Hon'ble Bombay High Courts judgment in case of Suvidhe Ltd. v. Union of India reported in 1996 (82) E.L.T. 177 (Bom.), the bar of limitation under Section 11B would not be applicable. He also pointed out para 6 Chapter 9 of the Supplementary instructions issued by the CBEC, according to which in ....