TMI Blog2001 (8) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... r admission today. The appellant has requested for decision on merits. Since the issue involved in the appeal is in relation to refund claim filed by the appellant, there is no requirement of any pre-deposit under Section 35F of the Central Excise Act for the purpose of hearing this appeal on merits. Hence the appeal is taken up for final disposal. 2. On examination of the memorandum of appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee as per order dated 27-10-1992. Subsequently the appellants filed the refund claim for refund of the aforesaid amount. The claim of refund was rejected by the Assistant Commissioner on the ground that the claim was filed beyond the period of six months prescribed under Section 11B of the Central Excise Act. This decision of the adjudicating authority was also taken in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited on 31-12-1991 was not a duty of excise but a deposit of money under Section 35F of the Central Excise Act for the sole purpose of their appeal being maintained on merits before the Commissioner (Appeals) and, therefore, the provisions of Section 11B were not applicable to any claim for refund of such amount. In support of this ground, the appellants have relied on the decision of the Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money for purposes of Section 35F of the Central Excise Act. This being so, the question whether the party wanted to treat the deposit as one having been made under protest is irrelevant. On the above question, the decision of the Gujarat High Court is pertinent. The High Court held that the amount deposited by an assessee during adjudication proceedings should be regarded as deposit and not dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the refund claim in question. Following the case law discussed above, I hold that the refund claimed by the appellants ought to have been allowed by way of relief consequential to the final order passed by the Collector (Appeals) in favour of the party on 27-10-1992, regardless of the provisions of Section 11B and Rule 233B ibid. The impugned order, therefore, requires to be set aside. I do s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
