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2015 (11) TMI 696 - AT - Central ExciseRefund - Bar of limitation - whether amount deposited during the course of investigation should be considered as duty of excise, for which the provisions of section 11B of the Central Excise Act 1944 can be considered for the purpose of computation of the limitation period - Held that:- If the duty is paid with regard to the removal of excisable goods from the factory, then obviously the provisions of section 11B of the Act will have the application, since the said section provides for filing refund application claiming refund of any “duty of excise” and interest, if any, paid on such duty. Since the amount paid during the course of investigation conducted by the preventive wing, which is not attributable to clearance of finished product from the factory, the amount deposited will be construed as mere deposit and not to be considered as payment of duty. Hence, in absence of non-consideration of such deposit as payment of duty of excise, in my considered view, for claiming refund of such amount, the provisions of section 11B will have no application. I also find that the refund claim in the present case has not been lodged under section 11B of the Central Excise Act. Rather, the claim application has been filed before the appropriate authority in a plain letter-form without mentioning therein any statutory provisions under which the claim is lodged. Thus, the authorities below have erroneously assumed that the claim being filed under section 11B, time limit prescribed therein should have the application and the claim having been lodged beyond one year from the relevant date, is barred by limitation of time. Such views expressed by the authority below are not in conformity with the statutory provisions. - amount not paid towards excise duty but only by way of deposit during investigation should not be considered as payment of duty; and as such, the provisions of section 11B of the Central Excise Act will have no application for refunding such amount. - impugned order dismissing the appeal on the ground of limitation is not sustainable and accordingly, the same is set aside - Decided in favour of assessee.
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