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2015 (11) TMI 1095 - AT - Central ExciseRefund claim - Reduction in penalty imposed - Certain rebates were sanctioned to the appellant and the penalty of ₹ 5 lakhs imposed upon them by the adjudicating authority was adjusted against the same - 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(5)(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 24-2-2006. 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. - Impugned order is set aside - Decided in favour of assessee.
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