TMI Blog2018 (4) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ed - decided in favor of appellant. - Appeal(s) Involved: E/23277/2014-SM - Final Order No. 20153 / 2018 - Dated:- 7-2-2018 - SHRI S.S GARG, JUDICIAL MEMBER Shri Krishna Murthy, Consultant, For the Appellant Shri Pakshirajan, Asst. Commissioner(AR), For the Respondent Per: S.S GARG The present appeal is directed against the impugned order dt 18/07/2014 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original, 2. Briefly the facts of the case are that the appellants are engaged in refining and marketing of petroleum products and they have a refinery at Mahul in Mumbai and have network of marketing installations and depots thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt did not refund the said amount, the appellant vide their letter dt. 16/11/2009 requested the Assistant Commissioner to refund the said predeposit amount. The Assistant Commissioner rejected the refund claim by issuing the show-cause notice on the ground that the claim was filed on 24/11/2009 against Tribunal's order dt 09/08/2007 and hence the claim was barred by limitation as per sub-section 5(B) (ec) of Section 11B of Central Excise Act. Thereafter the Assistant Commissioner vide order dt. 14/09/2010 rejected the refund. Against which the appellant filed appeal before the Commissioner(Appeals) who vide order dt. 28/03/2012 set aside the order of the Assistant Commissioner and directed the adjudicating authority to sanction the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the order with consequential relief. He further submitted that the CBEC circular is binding on the Department and the Department was bound to refund the predeposit within a period of three months from the date of disposal of the appeal by the CESTAT, Bangalore but the Department refunded the predeposit amount only on 12/02/2013. He further submitted that this issue is no more res integra and has been settled by the apex court in the case of (JOI Vs. Nelco Ltd. [2002(144) ELT A104(SC )] wherein the apex court has held as under: - The amount deposited under Section 35F of the Central Excise Act, 1944 as a condition precedent to hearing an appeal does not bear the character of duty but has character only of security deposit and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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