TMI Blog2006 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 for the period June, 1992 to January, 1994 and on according approvals, they effected clearances at NIL rate of duty. The officers concerned being under the belief that the appellants have wrongly availed exemption under said notification, have searched the premises of the appellants on 12-12-1996 and during the course of investigation, the appellants were directed to pay amount of Rs. 10,42,008/- and accordingly they have deposited the sum on 1-1-1997. A Show Cause Notice dated 26-6-1997 proposing to recover the duty amount amongst other proposals and also sought to appropriate the amount of Rs. 10.42 Lakhs paid by them towards duty liability. The notice was adjudicated by the Commissioner of Central Excise, Mumbai-III, vide his Order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2.50 lakhs was adjusted from the deposit made by the appellants. The time limit of six months will not be applicable as duty (ii) has been paid under protest in view of the provisions contained in the second proviso to the sub-section (1) of Section 11B. The Hon'ble Gujarat High Court in the case of (iii) Parle International Ltd. , reported in 2001 (127) E.L.T. 329 (Guj.) held that amounts deposited during the appeal or adjudication proceedings can not be said to be duty and that such amounts deposited during the adjudication proceedings would amount to deposit and not duty. In this case, the amounts which were paid before issue of Show-Cause-Notice were held to be deposit and the Revenue was directed to refund the amount. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own in the Mafatlal Industries case has been followed by the Tribunal in the case of Suri Industries - 2001 (132) E.L.T. 480 wherein identical issues were involved. It is observed that the amount deposited when enquiries were in progress as well as after the time issue of Show Cause Notice should be deemed to paid under protest, and time bar will not apply in this case para 5(a) and (b) of the order. 7 Thus I am of the considered view that the ratio of the judgment held in para 83 and 146 would apply in all its four corners to the present case and refund deserves to be sanctioned with interest by allowing appeal. 8 In identical case the Hon'ble Bombay High Court in the case of Marmo Classic v. Union of India - 2003 (157) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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