TMI Blog2002 (12) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... a show cause notice was issued to the respondent to show cause why a duty amounting to Rs. 16,39,84,343/- should not be recovered from them for the period 5-6-1992 to 31-12-1992. The said demand was raised in respect of Partially Oriented Yarn (POY) which was cleared without payment of duty under Rule 57F(2) of the Central Excise Rules from its Patalganga unit to Naroda unit for texturising. By its order dated 28th August, 1996, the Commissioner of Central Excise by Order-in-Original No. 209/96 confirmed the said show cause notice and demanded the duty indicated above. Respondent filed an Appeal E/2093/R/96-Bom. in the Tribunal. On 10-10-1996 the Tribunal in its Order No. 3611/96/WRB directed the respondents to deposit the entire amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as it was not duty. He specifically invited our attention to the finding given by the Hon'ble High Court of Bombay in the said case wherein it was held as follows :- "In respect of a deposit made under Section 35F, provisions of Section 11B can never be applicable. A deposit under Section 35F is not a payment of Duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief." 4.He heavily relies on this judgment. As far as the reliance by the appellate authority on the Allahabad High Court judgment in the case of Super Electronics - 1999 (113) E.L.T. 792 is concerned, he submits that the facts in that case are entirely different from the facts b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust, 1998 by observing in para 11 of the order which reads as under :- "As regards the claim for interest for delayed refunds under Section 11BB, we find that the said provisions applied to duty ordered to be refunded under Section 11B(2). In the instant case, there is no order passed by the Assistant Commissioner under Section 11B(2). The question of awarding any interest does not, therefore, arise." 7.In the instant case when the order dated 3-6-1998 was passed by the Tribunal, the party was entitled to get refund which by the Order-in-Original the adjudicating authority has given. When the adjudicating authority gave the same, it took beyond the period of three months as indicated in section 11BB of the Central Excise Act. When th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spense with such deposit subject to such conditions as may be imposed. It is in terms of this proviso the Commissioner (Appeals) or the Tribunal entertain application for waiver of deposit and lays order thereon. Any deposit that is ordered by the appellate authority has necessarily in terms of the Act to be either duty or penalty or interest. (It does happen that the Tribunal deals with applications for dispensing with fine for confiscation of goods, which has been provisionally released which is ordered in the adjudication. We need not for the purpose of this appeal go into the correctness or otherwise of that practice). Therefore in a case (as in the present) where the amount required to be deposited only duty, it is difficult to say tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently to an order of the Tribunal, the character of the deposit does not alter; it does not take on a different complexion merely because it was deposited at a point later in pursuance of an order of the appellate authority. 12.No doubt the judgment of the Bombay High Court in Suvidhe Ltd. does contain a sentence that an amount deposited under Section 35F is not a deposit. The relevant part of the judgment read as follows :- "In our judgment, the claim raised by the Department in the show cause notice is thoroughly dishonest and baseless. In respect of a deposit made under Section 35F, provisions of Section 11B can never be applicable. A deposit under Section 35F is not a payment of Duty but only a pre-deposit for availing the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of this duty has also been passed on as, for example, by way of debit). Counsel for the respondent also cited before us a decision by the Delhi Bench of the Tribunal in Bharat Heavy Electricals Ltd. v. CCE - 2002 (139) E.L.T. 591 (T) ordering interest on deposit in fact from the date of order of the appellate Tribunal allowing appeal of the assessee, although it must be admitted that this decision also did not consider the aspect relating to. The departmental representative draws our attention to an order of the Bombay bench in Sachin Textiles Pvt. Ltd v. CCE - 2001 (127) E.L.T. 108 (T). The bench in this decision referred for consideration by a Larger Bench, the question as to whether the Tribunal has inherent powers to order the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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