TMI Blog2021 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... or to or after the adjudication of demand case will become refundable only after any order decree in court or tribunal. In section 11B, as regard relevant date in the case of the refund of any amount paid, the relevant date is from the date of the order by which such demand is dropped. In the present case one year period is applicable from the dropping of demand by this tribunal in the demand case. The appellant has admittedly filed the refund after one year from the passing of the tribunal order whereby demand was set aside. Therefore, in terms of the sub clause (ec) of clause (B) of section 11B, the refund claim filed after one year from the relevant date is clearly time bar. If any assessee pay duty, interest and 25% penalty no not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed appeal before the Commissioner (Appeals) who vide impugned order dated 27.02.2014 allowed the refund of penalty on the ground that the refund of penalty is not governed by section 11B. However, rejected the appeal for the refund of duty and interest paid by the appellant being hit by limitation of time. Thereafter the appellant filed an appeal before this tribunal, this tribunal vide order dated 13.10.2017 dismissed the appeal by passing ex[1]parte order. Being aggrieved by the said order appellant filed an application for restoration of appeal. The said application was also dismissed vide order No M/10366/2018 dated 04.05.2018. The appellant challenged both the orders i.e. Final order dated 13.10.2017 and Miscellaneous order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CX dated 16.09.2014 Nelco Limited reported in 2002-144-ELT-56 (Bom) confirmed by SC reported in 2002-144-ELT-A104(SC) Eveready Industries India Ltd reported in 2017-357-ELT-11(ALL) KVR Construction reported in 2012-26-STR-1952(Kar) confirmed by SC 22018-14- GSTL-J70(SC) Mahalaxmi Exports reported in 2010-258-ELT-217(Guj. H.C) Pricol Ltd Reported in 2015-320-ELT-703 (Mad) Krishi Upaj Mandi Samiti reported in 2020-43-GSTL-204(Tri-Del) Bharat Foam Udyog (P) Ltd reported in 2002-142-ELT-546(P H) 3. Shri Vinod Lukose, Learned Superintendent, (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. He submits that the appellant has paid the entire duty, interest and 25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on behalf of the appellant has mainly argued that since this amount was paid before filing of appeal the same should be treated as pre-deposit in terms of section 35F. Therefore, the refund of said amount will not be governed by the provision of Section 11B. He placed reliance on those judgments wherein deposit was provided as pre- deposit under section 35F. I find that the appellant has very consciously paid the amount of duty under the head of Excise Duty, interest and penalty also under the respective account head and the department has not compelled appellant to make the said payment. The appellant could have availed the waiver of the Pre- deposit without paying any amount but they have chosen to make payment of excise duty, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the passing of the tribunal order whereby demand was set aside. Therefore, in terms of the sub clause (ec) of clause (B) of section 11B, the refund claim filed after one year from the relevant date is clearly time bar. 4.3 I further observed that it is evident from the record that the appellant during the course of investigation deposited the amount of duty, interest and 25% penalty on 10.02.2006 in order to avail the benefit of Section 11A(2B) of Central Excise Act, 1944 which is reproduced below: [(2B) Where any duty or excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty [on the basis of his own ascertainment of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made there under shall be imposed in respect of payment of duty under this sub-section and interest thereon.] 4.4 From the above section it is clear that if any assessee pay duty, interest and 25% penalty no notice needs to be issued and this benefit was explicitly availed by the appellant as they have made the submission before the Adjudicating Authority in the submission dated 26.12.2019 and 20.07.2010 which was recorded in the Order-In Original No 11/ADC (SC)/2010 dated 02.08.2010. Since appellant have availed this benefit it is clear that the appellant has consciously paid the duty, interest and 25% penalty. Hence it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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