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2011 (3) TMI 1136 - AT - Central ExciseEligibility of exemption Notification No.4/97-CE dated 01.03.1997 and Notification No.19/97-CE dated 11.04.1997 amending Notification No.4/97-CE - matter was remanded to the original authority by Tribunal to re-determine the duty liability after examining their claim for MODVAT Credit & in pursuance of the remand order, the duty demand was confirmed and amount of ₹ 5,00,000/- deposited was appropriated - Held that:- In the context of prolonged litigation in stages the refund became due to the party only after final order of the Tribunal dated 20.01.2005 categorically holding that the decision in the case of Albert David [2002 (11) TMI 144 - CEGAT, COURT NO. III, NEW DELHI] was not applicable to the facts of the party's case. The instruction dated 08.12.2004 of the Board relied upon by the Commissioner(Appeals) also refers to payment of interest only when the claim was not settled within a period of 3 (three) months of the disposal of the Appeal in the assessee's favour. The Commissioner(Appeals) has proceeded in as if the order dated 06.12.2000 has been passed finally in favour of the assessee, whereas it was not true. As formal application has been not made for refund of the pre-deposit & his submissions made at the time of personal hearing before original authority that they were entitled to refund can not be equated as a refund claim filed under Section 11B of the Central Excise Act - set aside the impugned order of the Commissioner(Appeals) and restore the order dt.12.05.2005 of the original authority stating that no further demand is due from the party.
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