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2015 (11) TMI 696 - CESTAT NEW DELHI

2015 (11) TMI 696 - CESTAT NEW DELHI - TMI - Refund - Bar of limitation - whether amount deposited during the course of investigation should be considered as duty of excise, for which the provisions of section 11B of the Central Excise Act 1944 can be considered for the purpose of computation of the limitation period - Held that:- If the duty is paid with regard to the removal of excisable goods from the factory, then obviously the provisions of section 11B of the Act will have the application, .....

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y considered view, for claiming refund of such amount, the provisions of section 11B will have no application. I also find that the refund claim in the present case has not been lodged under section 11B of the Central Excise Act. Rather, the claim application has been filed before the appropriate authority in a plain letter-form without mentioning therein any statutory provisions under which the claim is lodged. Thus, the authorities below have erroneously assumed that the claim being filed unde .....

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for refunding such amount. - impugned order dismissing the appeal on the ground of limitation is not sustainable and accordingly, the same is set aside - Decided in favour of assessee. - Excise Appeal No.E/53731/2014 EX. [SM] - FINAL ORDER NO. 51769/2015 - Dated:- 21-5-2015 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) For the Petitioner : Shri Ravinder Singh, Consultant For the Respondent: Shri G.R. Singh, DR ORDER PER: S.K. MOHANTY Rejection of refund application on the ground of limitation is the su .....

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rantee No.304 & 305 dated 14.02.2005 for provisional release of seized goods and vehicles respectively. The above Bank guarantee executed has been en-cashed on 20.12.2005 in favour of the Central Excise Department. Proceedings initiated by the Department was culminated in the Order-in-Original No.107/2005 dated 19.11.2005 passed by the Joint Commissioner, Central Excise, Jaipur-I. The said Order in original was challenged by the appellant in appeal before the Commissioner (Appeals). The appe .....

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one year from the relevant date, which in the present case is 15.02.2006, when the order was passed by Commissioner (Appeals) in allowing the appeal of the appellant. According to the said adjudication order, since the claim has been lodged beyond the period of one year from the relevant date i.e. 15.02.2006, the same is barred by limitation. The adjudication order was upheld by the Commissioner (Appeals) vide the impugned order, against which the present appeal has been preferred by the appell .....

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ad claimed refund of amount paid during investigation, which cannot be construed as duty of excise, the provisions of section 11B of the Central Excise Act will have no application and as such, the ground of limitation assigned for rejection of the refund application in the impugned order is not proper and justified. 4. Countering the submission made by the appellant, the ld. DR, Shri G.R. Singh appearing for the Revenue submits that pursuant to the Order- in-Appeal dated 15.02.2006 passed by th .....

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dated 15.02.2006, the same is clearly barred by limitation of time. 5. I have heard the ld. Counsel for both sides and perused the records. 6. The short question involved in this appeal is whether amount deposited during the course of investigation should be considered as duty of excise, for which the provisions of section 11B of the Central Excise Act 1944 can be considered for the purpose of computation of the limitation period. It is an admitted fact on record that the execution of bond by t .....

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ll have the application, since the said section provides for filing refund application claiming refund of any duty of excise and interest, if any, paid on such duty. Since the amount paid during the course of investigation conducted by the preventive wing, which is not attributable to clearance of finished product from the factory, the amount deposited will be construed as mere deposit and not to be considered as payment of duty. Hence, in absence of non-consideration of such deposit as payment .....

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claim being filed under section 11B, time limit prescribed therein should have the application and the claim having been lodged beyond one year from the relevant date, is barred by limitation of time. Such views expressed by the authority below are not in conformity with the statutory provisions. 7. The observations recorded above are duly supported by the judgements delivered by the Honble Supreme Court in the case of Oswal Agro Mills Ltd. vs. Asstt. Collector of Central Excise, Ludhiana and .....

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