TMI Blog2023 (10) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... igation/adjudication shall be treated as the amount paid under protest akin to the amount of pre-deposit under section 35F (CEA) - it is observed that there is no denial to the fact that Rs.8,49,545/- was deposited under section 35F in addition to impugned amount has already been refunded to the appellant. Hence irrespective the amount in question being the amount paid under protest has acquired the character of amount pre-deposit, but the said amount cannot be called as amount deposited under section 35F. Hence the question of applicability of section 35FF does not arise. Whether the period of limitation has wrongly been applied? - HELD THAT:- Once it is and held that the refund is under section 11B of the Act, the time limit of one y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat Credit Rules, 2004. The said amount was payment to be received alongwith interest and imposition of penalty. The said proposal was confirmed vide Order-in-Original bearing No.021-14-15 dated 27.3.2015. An appeal against the said order was filed. Thereafter, this Tribunal passed Final Order No.51578/2019 dated 13.11.2019 holding that the extended period of limitation could not have been invoked by the department. The demand for extended period with effect from 2009 to 2012 was set aside. The matter was remanded to the adjudicating authority to re-determine amount of service tax on trading activity of the appellant. However, only for the normal period, in light of the Tribunal s previous order No.A/51170-51171/2019-Ex dated 17.7.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was deposited pending adjudication has acquired the character of pre-deposit. There is no time limit applicable for seeking refund of the amount of pre-deposit. Hence the refund should have been granted. Ld. Counsel also impressed upon that the Order-in-Original as well as the one under challenge are miserably silent about citing any ground for rejecting refund claim. While relying upon the decision of Hon ble Supreme Court in the case of Mafatlal Industries Ltd. vs. Union of India, 1997 (89) ELT (SC). The order under challenge is prayed to be set aside and appeal to be allowed. 7. While rebutting these submissions, ld.DR has mentioned that the amount of Rs.1,13,27,270/- was proposed to be recovered vide show cause notice 15.10.2014 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayed to be upheld and the appeal is prayed to be dismissed. 8. Having heard rival contentions and perusing the entire record including appeal memo, final order dated 13.11.2019 as has been obtained through the case information system, it is observed that this Tribunal had set aside the entire demand pertaining to the extended period of limitation prior to 2012. The only demand re-determined for the normal period is for an amount of Rs.1,02,309/-. This is also observed that pending adjudication after issuance of show cause notice dated 15.10.2014 the appellant had deposited Rs.5,25,141/- alongwith interest Rs.2,77,582/- vide two separate challans dated 5.12.2014. After order of this Tribunal for confirming demand for normal period, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The only another provision for refund under CEA is section 11B. It is also admitted fact that amount of Rs.4,22,832/- was deposited after issuance of show cause notice towards proposed duty only. Thus refund will fall under section 11B only. Pursuant to the final order of this Tribunal, vide O-I-O dated 23.10.2020, the duty demand confirmed is only to the extent of Rs.1,02,309/-. Hence the balance of the amount deposited being akin to pre-deposit, is to be refunded to the appellant alongwith interest. 11. Coming to second issue of limitation, once it is and held that the refund is under section 11B of the Act, the time limit of one year is applicable to the said refund. The said time limit from the relevant date has been explained u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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