TMI Blog2011 (3) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 20.01.2005 categorically holding that the decision in the case of Albert David [2002 (11) TMI 144 - CEGAT, COURT NO. III, NEW DELHI] was not applicable to the facts of the party's case. The instruction dated 08.12.2004 of the Board relied upon by the Commissioner(Appeals) also refers to payment of interest only when the claim was not settled within a period of 3 (three) months of the disposal of the Appeal in the assessee's favour. The Commissioner(Appeals) has proceeded in as if the order dated 06.12.2000 has been passed finally in favour of the assessee, whereas it was not true. As formal application has been not made for refund of the pre-deposit & his submissions made at the time of personal hearing before original authority that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in pursuance of stay order dated 12.07.2010, the Respondents deposited a sum of ₹ 5,00,000/-(Rupees Five Lakhs only). 3.3. In the remand proceedings, the original authority vide order dated 16.08.2002 confirmed demand of ₹ 11,63,450/-(Rupees Eleven Lakhs Sixty Three Thousand Four Hundred and Fifty only) and appropriated ₹ 5,00,000/-(Rupees Five Lakhs only) made as pre-deposit in September, 2000. He also rejected their refund claim filed against the pre-deposit of ₹ 5,00,000/-(Rupees Five Lakhs only). This order of the original authority was upheld by the Commissioner(Appeals) but the Tribunal vide order dated 08.07.2003 set aside that order and remanded to the original authority. 3.4 Again original authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner(Appeals) has erred in holding that order dated 06.12.2000 of the Tribunal was the final order in favour of the party. He submits that in the said order, the main issue relating to the eligibility of exemption has been decided against the party and the demand was required to be re-quantified after considering the claim for MODVAT as claimed by the party. The issue relating to MODVAT claim got finally settled only by the order of the Tribunal dated 20.01.2005 and therefore the return of deposit has been made on 16.05.2005. The grant of interest by the Commissioner(Appeals) treating the order dated 06.12.2000 as a final order favourable to the Respondents is erroneous and therefore seeks setting aside the order of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utta High Court in the case of - Titan Engg. Co. Pvt.Ltd. v. CCE, Bolpur - 2005(189)ELT 416 (Cal.) (e) Decision of Hon'ble Supreme Court in the case of - CCE, Hyderabad v. I.T.C. Ltd. - 2005 (66) RLT 234 (SC) 6. We have carefully considered the submissions made from both sides and perused records. The matter is before the Tribunal for the fourth time. The first order of the Tribunal dated 06.12.2000 was undisputedly against the Respondents in so far as the same related to their claim for exemption was concerned. Apparently, accepting their alternate prayer, the matter was remanded to the original authority for considering the eligibility of MODVAT as claimed by them. The entitlement of MODVAT claim is undisputedly subject to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner(Appeals) also refers to payment of interest only when the claim was not settled within a period of 3 (three) months of the disposal of the Appeal in the assessee's favour. The Commissioner(Appeals) has proceeded in as if the order dated 06.12.2000 has been passed finally in favour of the assessee, whereas it was not true. 9. Further learned Advocate has submitted that no formal application has been made for refund of the pre-deposit. His submissions made at the time of personal hearing before original authority that they were entitled to refund, in our considered opinion, can not be equated as a refund claim filed under Section 11B of the Central Excise Act. Section 11B envisages refund only on application by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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