TMI Blog2013 (5) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuant to the direction of the lower authorities is not a voluntary payment and to be treated as a payment under protest - the amount deposited by the appellant during the investigation can never be construed as a duty as the amount which has been for which the show cause notice was issued clearly indicates that the amount, deposited needs to be appropriated against the duty liability if any, will indicate that it is a deposit. In favour of assessee. - E/744/2011 - A/10494/2013-WZB/AHD - Dated:- 10-4-2013 - M.V. Ravindran, J. For the Appellant : Dhaval Shah, Adv. For the Respondent : M. Kutty, AR. Judgement:- 1. This appeal is directed against order in appeal No. 103/2011(Ahd-II)CE/CMC/Commr(A)/Adh, dt.22.03.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically stated that the amount has been deposited as a pre-deposit. It is his submission that the appellant having succeeded in the matter, applied for the refund which was rejected only on the ground that the refund claim is filed after one year from the date of the order of the Tribunal which was in favour of the assessee. He would submit that the issue is no more res-integra as it is covered by the judgment of the Hon'ble High Court of Gujarat in the case of Shree Ram Food Industries - 2003 (152) ELT 285 (Guj.). He would also submit that the division bench of the Tribunal in the case of Motorola India Pvt. Ltd. - 2006 (206) ELT 370 (Tri. -Bang.), Toyota Kirloskar Auto Parts Pvt. Ltd. - 2009 (240) ELT 124 (Tri. -Bang.) and Birla Ericsson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not eligible for the benefit of SSI exemption notification. During the course of investigation, the appellant-assessee had deposited an amount of Rs.1,00,000/- and the said amount was sought to be appropriated in the very said show cause notice dated 28.11.06. The said show cause notice was adjudicated and proceedings were dropped by the adjudicating authority which culminated in an order of the Tribunal in the favour of the assessee. The assessee appellant undoubtedly has claimed the refund of the amount of Rs.1.00,000/- paid by him on 20.08.10. 7. The first appellate authority in the impugned order has come to a conclusion that the amount of Rs.1,00,000/- which has been deposited by the appellant is a duty worked out by the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation can be held only as a deposit and not duty. 8. I also find that the judgment of the Hon'ble High Court of Gujarat in the case of Shree Ram Food Industries (supra) very specifically dealt with this point that payment made by an assessee in pursuant to the direction of the lower authorities is not a voluntary payment and to be treated as a payment under protest. 9. As regards the reliance placed by the ld. D.R. in the case of Evershine Marbles and Exporters P. Ltd. and Redington India Ltd. for the proposition that the protest, gets vacated the moment an order is passed in favour of the assessee, will not apply in this case as in both the cases, as cited by the ld. D.R., the issue was discharge of the entire duty liability und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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