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2022 (5) TMI 562 - CESTAT NEW DELHI100% EOU - refund claim - relevant date u/s 11B of CEA - refund application is time barred or not - HELD THAT:- Refund claim of the amount of Rs. 5 lakhs (fixed in two bank guarantees initially of Rs. 2.5 lakhs each) has wrongly been denied to be refunded invoking section 11B of Central Excise Act. Perusal of the provision shows that the provision relates to the claim for refund of duty. Once it is clear that the amount in question is not the amount of duty, the said provision cannot be invoked. It is also an apparent fact that the aforesaid amount has already been treated by this Tribunal as an amount of pre-deposit (vide order on stay application dated .9.01.2006). The relevant provision applicable to impugned amount is section 35F and 35FF. The very perusal of section 35FF which talks about interest on delayed refund of amount of pre deposit under section 35F makes it clear that the provision is absolutely silent about any time limit for the assesee to claim his amount which was deposited by him for the purpose other than duty. The Hon’ble Apex Court in the case of U.O.I. VERSUS SUVIDHE LTD. [1996 (8) TMI 521 - SC ORDER] while holding the decision of Bombay High Court in SUVIDHE LTD. VERSUS UNION OF INDIA [1996 (2) TMI 136 - BOMBAY HIGH COURT] has held that Section 11B of the Act can never be invoked to cases of pre-deposit of duty in compliance of section 35 of the Act. Since the pre-deposit condition is not payment of duty but it is only pre-deposit for availing the right of appeal that the time bar of Section 11B cannot be imposed on such an amount while sanctioning the refund thereof. Thus, the provision of Section 11B of Central Excise Act is not applicable to the refund in question - reliance can also be placed in the case of BAJAJ AUTO LTD. VERSUS COMMISSIONER OF C. EX., AURANGABAD [2007 (1) TMI 408 - CESTAT, MUMBAI] wherein it was held that the amount which was deposited during the initial stages of proceedings cannot be retained by the Revenue and if the same is retained then such retention is without the authority of law, that the same will amount violation of Section 365 of Constitution of India. Department also cannot be allowed to be unjustly enriched by retaining the amount for which it had no authority of law to collect. Thus, it is held that the Commissioner (A) has wrongly invoked the time bar of Section 11B of Central Excise Act despite that the amount in question was not the amount of duty - appeal allowed - decided in favor of appellant.
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