TMI Blog2008 (12) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ready deposited by the Respondent and also imposing penalty on them under Section 11AC treating the shortage of the marble slabs as clandestine removal. The Additional Commissioner vide order-in-original dated 24-9-03 confirmed the duty demand and ordered appropriation of the amount already paid by the Respondent towards the duty and beside this, penalty of equal amount was imposed under Section 11AC. The Respondent filed before the CCE (Appeals) and the Commissioner (Appeals) vide order-in-appeal dated 7-5-04 allowed the appeal following Hon ble Supreme Court s judgment in case of Aman Marble Industries P. Ltd. v. CCE, Jaipur reported in 2003 (157) E.L.T. 393 (S.C.) = 2003 (58) RLT 595 (SC), wherein it has been held that cutting of marble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttract any Central Excise Duty was passed on 7-5-04 and the refund claim was filed on 23-5-06, the refund claim is time barred and the same has been rightly rejected by the Deputy Commissioner. 3. Shri Atul Gupta, Company Secretary, the learned Counsel for the Respondent pleaded that the amount paid was in the nature of pre-deposit and, therefore, in view of Hon ble Bombay High Courts judgment in case of Suvidhe Ltd. v. Union of India reported in 1996 (82) E.L.T. 177 (Bom.), the bar of limitation under Section 11B would not be applicable. He also pointed out para 6 Chapter 9 of the Supplementary instructions issued by the CBEC, according to which in the cases of refund/returned of deposit made under Section 35F of Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering Hon ble Supreme Court s judgment in case of Mafatlal v. Union of India [1997 (89) E.L.T. 247 (S.C.)] has held that when the duty has been paid under protest, the period of limitation would start to run from the date of the final decision in the assessee s own case. In this case, even, if the payment of duty by the Respondent is treated as under protest, for the reason that they had challenged the Deputy Commissioner s order before Commissioner (Appeal), the dispute stands decided once the Commissioner (Appeal) decided issue in their favour vide order dated 7-5-04. In view of this, the relevant date for counting the limitation period of one year for the purpose of filing refund application under Section 11B would be the date of Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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