TMI Blog2009 (9) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... em. As regards the duty demand of Rs.1,59,206/- and penalty of Rs.20,000/- which was upheld by the Tribunal, the appellant had paid the entire amount of duty and penalty on 9-11-04 and interest on 31-12-04. The Assistant Commissioner, however, vide order-in-original dated 9-2-05 rejected the aforesaid refund claim on the ground that the amount which was paid by the appellant through debit entry No. 17 dated 4-5-01 in the Cenvat credit account, cannot be considered as pre-deposit under Section 35F and hence for its refund, the refund application as per the provisions of Section 11B should have been filed. The appellant filed an appeal to Commissioner (Appeals) against the above order-in-original and the Commissioner (Appeals) vide the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und claim of Rs.8,00,000/- (Rupees Eight Lakh) filed by the respondent. The facts of this case giving rise to this appeal are, in brief, as under:- 1.1 The appellant are engaged in the manufacture of M.S. Ingots, Alloy Steel Ingots and casting of M.S. Steel. Their unit was visited by Central Excise Officers on 3-5-01 in course of which certain records were examined and some records were resumed for detailed scrutiny. After scrutiny of the resumed records and conducting some inquiry, a show cause notice dated 1-5-02 was issued to the appellant and five others seeking recovery of duty of Rs.2,93,25,164/- (Rupees Two Crore Ninety Three Lakh Twenty Five Thousand One Hundred Sixty Four) alongwith interest from the appellant and also imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund claim on the ground that the amount which was paid by the appellant through debit entry No. 17 dated 4-5-01 in the Cenvat credit account, cannot be considered as pre-deposit under Section 35F and hence for its refund, the refund application as per the provisions of Section 11B should have been filed. The appellant filed an appeal to Commissioner (Appeals) against the above order-in-original dated 9-2-05 of the Assistant Commissioner and the Commissioner (Appeals) vide the impugned order-in-appeal dated 30-9-05 upheld the Assistant Commissioner's order. It is against this order that the present appeal has been filed. 2. Heard both the sides. 2.1 Shri S. Sunil, Advocate, the learned Counsel for the appellant pleaded that the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dabad reported in 2007 (210) E.L.T. 588 (Tri. - Ahmd.). 2.2 Shri Sansar Chand, the learned Departmental Representative, defended the impugned order, reiterating the Commissioner (Appeals)'s finding and pleaded that in this case it is on record that the amount under reference had been paid by the appellant on 4-5-01 vide debit entry No. 17 in the RG-23A Part II account, while the application for refund/re-credit was submitted to the Assistant Commissioner on 10-11-04, that is, beyond the period of one year and since the appellant could not produce any evidence that deposit of Rs.8,00,000/- had been made under protest, the refund application has been rightly rejected as time-barred. 3. We have carefully considered the submissions from b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within a period of one month from the date of the Tribunal's order, but after expiry of period of one year from the date of debit, is to be treated as within the limitation period or time-barred. 3.2 Though the amount of Rs.8,00,000/- had been paid by the way of debit in the Cenvat credit account prior to the issue of show cause notice, on adjudication of this matter, this amount has been appropriated towards the duty demand. The refund claim has arisen when the Commissioner's order was set aside by the Tribunal vide final order dated 28-10-04. The Tribunal in the case of Surbhi Enterprise v. CCE, Ahmedabad (supra) has held that when the duty paid during investigation has been contested throughout from the original stage, its payment ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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