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2010 (12) TMI 1259 - HC - Central ExciseRefund of the pre-deposit amount before CESTAT - rejection on the ground that the claim was belated, under Section 11B of the Central Excise Act, 1944 - contention of the petitioner herein is that being in the nature of pre-deposit, Section 11B of the Act could not be invoked and the return of deposit should be made in terms of Section 35F of the Act. HELD THAT:- In terms of the circular dated 8-12-2004 and in the light of the decision of the Apex Court in U.O.I. VERSUS SUVIDHE LTD. [1996 (8) TMI 521 - SC ORDER] confirming the view of the Bombay High Court in SUVIDHE LTD. VERSUS UNION OF INDIA [1996 (2) TMI 136 - BOMBAY HIGH COURT], the pre-deposit to maintain the appeal is not to be equated to the payment of duty to invite the provisions of Section 11B of the Act. Learned counsel for the petitioner submits that the order now passed invoking Section 11B of the Act is unsustainable. Going by the admitted fact that the pre-deposit was made in terms of Section 35F of the Act, the question of invoking Section 11B of the Act to reject the claim of the petitioner as time-barred, does not arise. As pointed out in the circular dated 2-1-2002, when the claim can be made even by a simple letter along with attested xerox copy of the order in appeal, the question of the Department further adjudicating the matter invoking Section 11A of the Act, hence, does not arise. The Circulars of the Board are binding on the respondents who have the responsibility of respecting the same. More so, in the context of the decision of the Apex Court, the question of re-agitating the issue now does not arise. In the circumstances, accepting the case of the petitioner, the writ petitions are allowed. The respondents are directed to refund the amount within a period of eight weeks from the date of order along with interest at 6% per annum from the date of receipt of the order till the date of payment - Petition allowed.
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