2015 (11) TMI 696

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....d the appellants factory on 07.01.2005 and during the course of investigation by the authorities, the appellant had paid Rs. 1,04,889/- through TR-6 Challan dated 16.02.2005. The appellant also deposited Rs. 1,60,646/- and Rs. 50,000/- as security against bank guarantee No.304 & 305 dated 14.02.2005 for provisional release of seized goods and vehicles respectively. The above Bank guarantee executed has been en-cashed on 20.12.2005 in favour of the Central Excise Department. Proceedings initiated by the Department was culminated in the Order-in-Original No.107/2005 dated 19.11.2005 passed by the Joint Commissioner, Central Excise, Jaipur-I. The said Order in original was challenged by the appellant in appeal before the Commissioner (Appeals....

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....ppellant had claimed refund of amount paid during investigation, which cannot be construed as duty of excise, the provisions of section 11B of the Central Excise Act will have no application and as such, the ground of limitation assigned for rejection of the refund application in the impugned order is not proper and justified. 4. Countering the submission made by the appellant, the ld. DR, Shri G.R. Singh appearing for the Revenue submits that pursuant to the Order- in-Appeal dated 15.02.2006 passed by the Commissioner (Appeals), the refund claim has been lodged by the appellant. Mere non-referring to section 11B in the said application will not support the case of the appellant that the same has not been filed under section 11B of the A....

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....ted by the preventive wing, which is not attributable to clearance of finished product from the factory, the amount deposited will be construed as mere deposit and not to be considered as payment of duty. Hence, in absence of non-consideration of such deposit as payment of duty of excise, in my considered view, for claiming refund of such amount, the provisions of section 11B will have no application. I also find that the refund claim in the present case has not been lodged under section 11B of the Central Excise Act. Rather, the claim application has been filed before the appropriate authority in a plain letter-form without mentioning therein any statutory provisions under which the claim is lodged. Thus, the authorities below have erroneo....