TMI Blog2015 (4) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... claim within one year from the date of order of the Commissioner (Appeals) and it is hit by limitation under Section 11B of the Central Excise Act 1944. I find that there is no dispute that the appellant deposited the amount during investigation. - decision in the case of Bajaj Auto Ltd (2007 (1) TMI 408 - CESTAT, MUMBAI) is directly applicable in the present case, as there is no issue of unjust enrichment. I also find that the decision of Hon’ble Supreme Court in the case of M/s Mafatlal Industries Ltd (1996 (12) TMI 50 - SUPREME COURT OF INDIA) as relied upon by learned Authorised Representative has already been considered by the Tribunal in the case of M/s Foods, Fats & Fertilizers Ltd (2010 (6) TMI 344 - CESTAT, BANGALORE ). - mpugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit made by the appellant. The Revenue challenged this order of Commissioner (Appeals) before the Tribunal. The appellant has also filed a cross objection against the appeal of the Revenue. The Tribunal vide Final Order No.A/1355-1356/WZB/AHD/2011, dt.28.07.2011 rejected the appeal filed by Revenue and the cross objection filed by the appellant was allowed by setting aside the penalty imposed under Section 77 78 of the Finance Act, 1994. Thereafter, the appellant filed a refund claim of ₹ 2,66,907.00 as deposited by them during the investigation. The adjudicating authority sanctioned and paid a refund of ₹ 2,66,907.00. Revenue filed appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pre-deposit under Section 35F, which is not applicable in this case. 4. After hearing both the sides and on perusal of the records, I find that a show cause notice was issued proposing demand of Service Tax of ₹ 6,07,032.00 for the period 01.07.2003 to 27.08.2005 under the category of Business Auxiliary Service. It is seen from the show cause notice that the appellant during investigation, deposited an amount of ₹ 6,85,200.00 through TR6 challan dt.19.09.2005. The adjudicating authority appropriated the said amount against the demand of duty. Commissioner (Appeals) modified the adjudication order and reduced the demand of duty and accordingly the proportionate deposit was appropriated against the said demand. This fact was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is hit by barred of limitation cannot be sustained. The same is accordingly set aside and appeal allowed with consequential relief in accordance with law. 6. The Tribunal in the case of M/s Foods, Fats Fertilizers Ltd Vs CCE Guntur (supra), after considering the decision of Hon ble Supreme Court in the case of M/s Mafatlal Industries Ltd on the identical issue, allowed the appeal filed by the appellant. It is also noted that Hon ble Supreme Court in the case of Suvidhe Ltd (supra) while dismissing the appeal, upheld the order of Hon'ble Bombay High Court and it has held that in respect of the deposit made under Section 35F of Central Excise Act 1944, the provisions of Section 11B can never be applicable, since it is not a paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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