TMI Blog2003 (9) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... /- availed by it during the periods 1994-95 and 1995-96 and informed the Revenue accordingly vide their letter dated 3-10-97. 1.3 The appellants were subsequently issued a show cause notice proposing imposition of penalty upon them for irregular availment of Modvat credit. 1.4 The said show cause notice was adjudicated by the Commissioner vide his order dated 28-5-98 who imposed personal penalty upon the appellant. Thereafter the appellant filed an appeal against the said order of the Commissioner and the Tribunal vide its order dated 9-6-99 set aside the personal penalty upon the appellant by observing that the very basis of imposition of penalty does not survive as the case made out against the dealers who allegedly issued the modvata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no show cause notice to the appellant for confirmation of the said deposit; that inasmuch as no proceedings has been initiated to adjust the said amount towards central excise duty, the same cannot be considered as duty so as to attract the provisions of limitation; that the same was the amount deposited during investigation and the appellants are entitled to the refund of the same. 1.8 That the Asstt. Commissioner however rejected the refund claim on the ground that their refund application was beyond the period of six months from the relevant date. 1.9 Being aggrieved with the said order the appellant filed an appeal before the Commissioner (Appeals). Commissioner (Appeals) rejected the appellants' claim by observing as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of investigation, the same cannot be considered as duty amount so as to attract the provision of Section 11B. Shri Chattopadhyay has strongly argued that the said amount of Modvat credit reversed by them during the course of investigation by the DGAE officers has not been confirmed by the Revenue and the show cause notice issued to them was only for imposition of personal penalty. In any case the proceedings arising out of the said show cause notice have also been set aside by the Tribunal. As such no case survives for the Revenue to retain the amount in question. He also draws my attention to the various rulings of the Tribunal as also of the Hon'ble High Court of Gujarat in support of his defence. 4. I find that the Larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e never issued any show cause notice to the appellant proposing confirmation of the said reversal by the appellant. The notice issued to the appellant was only for the purposes of imposition of personal penalty, which in any case was also set aside by the Tribunal. As such it cannot be said that the amount was deposited by the appellant by reversing the Modvat credit is the 'duty' amount deposited in pursuance to any adjudication order or demand order. The same has to be treated as a mere deposit made by the appellant during the course of investigation, which has not culminated into any adjudication proceedings confirming the said deposit. As such I am of the view that the provisions of Section 11B laying down the limitation of six months f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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