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2018 (5) TMI 1185 - AT - Central ExciseRefund claim - duty paid under protest - refund was sought on the ground that the Department did not issue any show cause notice to the Appellant for demanding the duty even after the passage of a period of 4 years from the date of deposit, which shows that there was no case against the Appellant - section 11B of CEA - Held that: - the Assistant Commissioner vide his order dated 09/04/2009 was pleased to disburse the refund of the principal amount, but as regards interest, it was observed that the CBEC vide Circular No.802/35/2004-CX dated 08/12/2004, has clarified that the interest in case of pre-deposit has to be refunded within 3 months from the date of the order passed by the Appellate Tribunals/Court or other Authority, unless there is any stay on the order of the Appeal Authority/CESTAT/Court (by a Superior Court). In the facts of the present case, it was not pre-deposit within the terms of Section 35F of the Act rather the Department had got the amount deposited during investigation, being out of pocket of the Appellant. But later on failed to establish the duty liability against the appellant and even failed to issue show cause notice. The amount was lying with the Department for more than 4 years without any reason and thus the assessee was entitled for compensation in the shape of interest which was granted to them by the Appellate order dated 13/01/2009. Also, observing that the directions of CBEC vide the aforementioned Circular is not applicable in the facts and circumstances. Appeal dismissed as not maintainable.
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