2003 (9) TMI 203

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....t, in Para 83 of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247, wherein it has been held that such deposits made before the Commissioner (Appeals) at the time of filing the appeal and the same is to be treated as made under protest and refund of such amount is not hit by time-bar. Such amount should be refunded. The findings recorded by the Commissioner (Appeals) in Paras 4 to 5 is extracted herein below : "4. I have gone through the facts of the case, the written submissions made by the appellant, and the case laws referred during the personal hearing. The only ground taken by the lower authority is that the appellant had not paid duty "Under Protest" and that the assessment was not provisional. He relied upon the Judgment o....

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....of the Apex Court judgment would be relevant. The Tribunal at Para 8 in the above judgment held as follows :- "The Case of respondent is covered by Paragraph 83. It had paid the duty before filing appeal to the Commissioner (Appeals) and the duty was paid under protest as held by the Supreme Court…..". Therefore, the Assistant Commissioner's only ground is totally unsustainable. The issue is no longer res integra and is covered by innumerable decisions of various higher judicial forums as enumerated hereunder :- Commissioner of C.Ex., Delhi-II v. Bharat Foam Udyog (P) Ltd. - 2002 (142) E.L.T. 546 (P & H) "Refund of pre-deposit after appeal allowed with consequential relief - Reference to High Court - Pre-deposit made by ass....

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....ncy of appeal before Commissioner (Appeals) - On appeal being allowed, the appellants claimed refund of the said amount - claim not time-barred as payment is to be treated as made under protest - Appeal rejected. Fluidomat Ltd. v. Commissioner of Central Excise, Indore - 2002 (139) E.L.T. 82 (Tri. - Del.) Stay/Dispensation of pre-deposit - Pre-deposit is a mere deposit of money and not payment of duty, for purpose of refund claim, to which limitation provisions of Section 11B of Central Excise Act, 1944 and provisions of erstwhile Rule 233B of Central Excise Rules, 1944 do not apply - Appeal allowed. CCE, Channai-III v. Consul Consolidated P. Ltd. - [2002 (141) E.L.T. 792 (T)] 2002 (49) RLT 724 (CEGAT - Chennai) Refund - Pre-dep....

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..... 115 (T)] 2002 (51) RLT 356 (CEGAT - Kol.) Unjust enrichment - Refund - Section 11B of Central Excise Act, l944 - Bar not applicable to refund of amount deposited during pendency of appeal before CEGAT and relatable to set-off of duty in terms of Notification No. 201/79-C.E. - Appeal allowed. Shree Ram Food Industries v. Union Bank of India - 2003 (152) E.L.T. 285 (Guj.) Refund - Substantive right of refund having arisen as a result of Commissioner's order, procedure laid down under Rule 233B of erstwhile Central Excise Rules, 1944 not capable of being followed - Non-observance of Rule 233B ibid not disentitles the petitioner from recovering amount paid in excess of duty leviable - Amount originally paid by petitioner merely 'depo....