TMI Blog2017 (8) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... The brief facts of the case are that the appellants had filed a refund claim amounting to ₹ 20,00,000/- of pre-deposit of Central Excise duty made as a condition precedent to the hearing of their Appeal No. ER No. 52/98 in terms of Order No. S-228/CAL/98 dt. 22.05.1998 passed by the Hon ble Customs, Excise Service Tax Appellate Tribunal, Kolkata. The Hon ble CESTAT had allowed the appeal vide their Order No. A-350/KOL/2010 dt. 26.05.2010 and consequently the appellants filed the above refund claim on 19.09.2011 alongwith the relevant documents. The adjudicating authority rejected refund claim as time barred. Aggrieved from the same, the appellants went in appeal before the Ld. Commissioner (Appeals). Vide order dt. 30.11.2012, the Ld. Commissioner (Appeals) rejected their appeal. Aggrieved from the same, the appellants have filed this appeal. 3. Ld. Advocate for the appellant submits that the limitation prescribed Under Section 11B of the Central Excise Act (the Act) is not applicable to the pre-deposit made under Section 35 of the Act since the pre-deposit is not in the nature of duty and is in the nature of pre-deposit. She submits that it is settled legal position tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vishakhapatnam 2006 (204) ELT 333 (Tri.- Del.). 5. Miles India Ltd. Vs. Assistant Collector of Customs 1987 (30) ELT 641 (SC). 6. Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills 1988 (37) ELT 478 (SC). 7. Mafatlal Industries ltd. Vs. Union of India 1997 (89) ELT 247 (SC). 8. Mahavir Aluminium Ltd. Vs. Collector of Central Excise, Jaipur 1999 (114) ELT 371 (SC). 5. Heard the parties and perused the records. 6. I find that the issue of applicability of Section 11B on deposits made under Section 35F is no longer res integra and has been decided by Hon'ble Bombay High Court in the case of SUVIDHE Ltd. Vs. UOI (supra) wherein Hon ble High Court held as below:- 2.Show cause notice issued by the Superintendent (Tech.) Central Excise to the petitioner to show cause why the refund claim for Excise Duty and Redemption fine paid in a sum of ₹ 14,07,410/- should be denied under Section 11B of the Central Excise Rules and Act, 1944 (sic) is impugned in the present petition. The aforesaid amount is deposited by the Petitioners not towards Excise Duty but by way of deposit under Section 35F for availing the remedy of an appeal. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment. 4. The judgment of Miles India Ltd. Vs. Assistant Collector of Customs (supra) relate to the payment of duty under mistake of law which is not the case here. Similarly, the judgment of Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills (supra) is not in relation to refund of pre-deposit and hence is inapplicable. 5. The Judgment of Mafatlal Industries ltd. Vs. Union of India (supra) does not apply to the facts of this case as it deals with refunds under Section 11B of the Central Excise Act, 1944. The refund of pre-deposit as condition of hearing in appeal is not treated as refund falling under Section 11B as per the Board Circular dt. 02.01.2002. 10. The appellants have sought the interest on refund under Section 11BB of the Act read with Section 35FF. I find that the question of interest on refund of pre-deposit was examined in detail by this Tribunal in the case of AFCONS Infrastructure Ltd. CCE, Visakhapatnam 2006 (204) ELT 333 (Tri. Del.) wherein this Tribunal took the following view:- 8.4 Section 11BB, referring to the provisions of Section 11B (2) under which refund is ordered, lays down that if the duty ordered to be refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is absolutely no scope under the said provisions either for Assistant/Deputy Commissioner or the Appellate Tribunal or Court to award interest on the refund amount from any date earlier than the date immediately after the expiry of three months of the date of receipt of such application. The appellant would, therefore, not be entitled to interest on the refund claim from 15-10-1994, being the date on which the deposit of partial amount of duty demanded was made by the appellant under Section 35F of the Act for the hearing of the appeal. 8.6 Admittedly, the refund claim was sanctioned within three months from the date of the application for refund. Obviously, therefore, the appellant was not entitled to claim interest on the refund of ₹ 4,30,000/- being the pre-deposit of the duty demanded under the order, which was challenged before the Tribunal under Section 35F of the Act. The Tribunal, while entertaining the claim of interest of the present nature, cannot overlook the provisions of Section 11BB of the Act, which would apply in all cases of interest on delayed refunds. The decision in Kuil Fireworks Industries in which the Hon ble the Supreme Court while directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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