TMI Blog2011 (6) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35 of the Central Excise Act, 1944. appeal itself was not maintainable before the Commissioner (Appeals). appeal of the Revenue is thus allowed. - E/270/2010 - A/161/2011-WZB/C-IV(SMB) - Dated:- 21-6-2011 - Shri P.R. Chandrasekharan, J. Appearance: Shri Ashwini Kumar Prabhakar, Authorised Representative (JDR) for the appellant Shri D.H. Nadkarni, Advocate for the respondent This is a departmental appeal filed by the Commissioner of Central Excise, Kolhapur against the Order-in-Appeal No: PII/PAP/236/2009 dated 16/11/2009. Vide the said order-in-appeal the Commissioner (Appeals), Pune had allowed the appeal filed by the respondent M/s. I.J. Muthu Foods Pvt. Ltd., Ratnagiri. 2. The brief facts of the case are as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest. Besides, the time limit prescribed under section 11B is also not applicable to the issue on hand. Again as held by various higher appellate forum including the Apex Court, the limitation act is inapplicable for granting refund under Central Excise Act / Customs Act. Besides, the impugned OIO, having traveled beyond the scope of SCN, is also not sustainable and it violates the principle of natural justice. In short, on all grounds, the impugned OIO is not sustainable and consequently the appellant is entitled for refund." 3. The department is in appeal against the said order of the Commissioner (Appeals). 3.1 The ground urged in the appeal memo is that even under the Limitation Act, 1963, the general limitation period is 3 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an administrative charge. The amount deposited as cost recovery charges are as per the conditions of licence for the private bonded warehouse issued under Section 58 of the Customs Act to 100% EOUs. Therefore, the refund claim is not covered under the provisions of the Central Excise Act or the Rules or Customs Act or the Rules. The refund of cost recovery charges is an administrative function and the respondent herein should have approached the jurisdictional Commissioner or the administrative machinery of the department for refund of the amount instead of filing an appeal under Section 35 of the Central Excise Act, 1944. Thus the appeal itself was not maintainable before the Commissioner (Appeals). An identical issue came up before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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