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2023 (2) TMI 65 - CESTAT HYDERABADRefund - Amount deposited during proceedings before the Settlement Commission - Period of time limitation - Valuation - non-inclusion of value of freight between factory and the buyer’s premises while paying central excise duty - The issue was decided in favor of appellant - HELD THAT:- Of the total amount claimed in the appeal only an amount of Rs 4,22,85,418 paid through four challans is being pressed by the appellant. Undisputedly, these amounts were not paid in the normal course of self-assessment and were not reflected in the ER-1 returns but were paid as differential duty of excise through those challans after being pointed out by the department. If any duty is not levied, not paid, short paid, or short paid or erroneously refunded, the procedure to recover the amount is prescribed under Section 11A of the Central Excise Act which requires a notice to be issued to the assessee within the time limits prescribed. If the non-payment of duty is due to fraud, collision or willful misstatement or suppression of facts or violation of Act or Rules with an intent to evade payment of duty such notice can be issued within an extended period of limitation of 5 years. In this case the amounts have not been appropriated and therefore they can only be considered as deposits and cannot be considered as duty. Since, no show-cause notice was issued to recover the differential duty, the amounts in dispute can only be considered as deposits. For this reason, the limitation prescribed under Section 11B for refund does not apply to this case. Keeping in view the judgement of Tribunal in MY HOME INDUSTRIES PVT LTD. VERSUS COMMISSIONER OF CENTRAL TAX, VISHAKHAPATNAM [2022 (12) TMI 133 - CESTAT HYDERABAD] in appellant’s own case holding that amount of freight to buyer’s premises is not includible in the assessable value. The amount of Rs 6,35,36,825/- as paid by the appellants was not their duty liability. However, the amount of Rs 2,12,51,407/- has been accede to have been settled before settlement commission. The impugned order needs to be modified and the appeal is allowed partially to the extent of sanction of refund of Rs 4,22,85,418/- to the appellant.
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