9911796707
TMI Blog2000 (3) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... d on one diesel captive generating unit of 25 KVA - vide RG 23 C Part II Sl. No. 1, dated 12-7-1996. The department issued a show cause notice dated 27-12-1996 proposing denial of the said credit on the ground that the electric generating set of output exceeding 75 KVA were alone eligible. After due process of law, the lower authority disallowed the credit vide order dated 31-7-1997. On appeal, the Commissioner (Appeals) allowed the credit vide Order-in-Appeal No. 220/98 (M-III), dated 30-4-1998 - holding that at the time of availing of Modvat credit, both 1(c) and 1(d) of Rule 57Q were in existence simultaneously and no differentiation could be made between generating sets and generating sets above 75 KVA, and that subsequently such co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 434 (T), the payment of duty here was a statutory requirement so that the appeal could be heard on merits and therefore such payment cannot be construed as voluntary payment. They also referred the case law in the case of C.C.E. v. Bajaj Hindustan Ltd. reported in 1999 (32) RLT 614 (CEGAT) wherein the Tribunal negatived the contention of the department that the refund was time barred on the ground that the pre-deposit was not under protest. They finally pleaded that the refund arose consequent on allowing the appeal by the appellate authority and so should be granted to them. The matter was heard through Shri R. Kalyanaraman, Consultant when he reiterated the grounds of appeal. 5. I find force in the pleadings of the appellants. Here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants, para 146 of Mafatlal s judgment applies here and not para 83. In this para it is stated that even duty paid in cases which finally ended in decrees or judgments of the courts must be deemed to have been paid under protest. When this is the position for the duty paid, obviously it will all the more apply to pre-deposit of duty. In the light of the above discussions, the appellants are entitled for the return of the amount which was originally debited in their PLA account. Accordingly, the impugned order rejecting the claim as time-barred is not correct and has to be set aside. The appeal is allowed with the direction that the lower authority may deal with the refund claim on merits as per law. 6. For the above reasons the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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