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2014 (10) TMI 406 - AT - Central ExciseDenial of refund claim - Commissioner (Appeals) has rejected the refund claim by upholding the order of adjudicating authority on the ground that said deposit cannot be held to be pre-deposit inasmuch as the same was adjusted against sanctioned refund claim - Held that:- When it is the department itself, who adjusted the sanctioned refund claim against the penalty amount, due to be paid by the assessee, it has to be treated as pre-deposit, which are subject to outcome of final order of the appellate authority. Revenue cannot take the benefit of its own actions i.e. first adjusting the outstanding dues against the sanctioned claims and then to say that same were not pre-deposits - As regards the reliance on provisions of Section 11B(ec), it is seen that same was introduced with effect from 11-5-2007, as such, would not be applicable to the refunds arising out of the order dated 17-2-2006. In any case, I find that the same does not apply to the refund of penalty as held by the Tribunal in the case of CCE, Mumbai v. Fibre Foils Ltd. [2000 (7) TMI 437 - CEGAT, MUMBAI] laying down that in any case the limitation provided in terms of Section 11B applies to refund of duty and not refund of penalty - Decided in favour of assessee.
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