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TMI Blog2017 (2) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... lty is to be treated as Revenue deposit and the provisions of refund of duty shall not be applicable to the same. The amount which has been adjudged is as per the authority of law and the amount which is in excess of the adjudged amount if retained that such retention of said amount shall be without authority of law and Article 365 of Constitution of India has not authorized Revenue to retain such amount - appeal allowed - decided in favor of appellant. - Appeal No. E/2843/2006-EX [DB] - Final Order No. 70145 /2017 - Dated:- 31-1-2017 - Anil Choudhary, Member (Judicial) And Anil G. Shakkarwar, Member (Technical) Shri Atul Gupta, Advocate for the Appellant Shri Rajeev Ranjan, Joint Commr. (A.R.) for the Department ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In respect of claim for refund of ₹ 8,36,185/- and Rs.One crore fifty lakh the Original Authority held that refund was hit by time bar and that the said payments were not covered by Rule 233B of Central Excise Rules, 1944 and, therefore, since the claim was not filed within one year from the date of payments, the claim of refund was hit by time bar. Aggrieved by the said order, the appellant preferred appeal before Ld. Commissioner (Appeals). The Learned Commissioner (Appeals) rejected the appeal through Order-in-Appeal No.102-CE/APPL/Noida/06 dated 17.07.2006. Aggrieved by the said order, appellant is before this Tribunal. 3. The grounds of appeal included that the amount was deposited during the course of proceedings and the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded through Final Order No.653-658 dated 02.08.2005. This Tribunal set aside the duty demand of ₹ 2,66,26,717/- and reduce the penalty from ₹ 2 crore to ₹ 10 lakh on the appellant and the penalty on the Officers of the Company was set aside. This Tribunal also allowed consequential relief to the appellant to said appeal. 4.1 The learned counsel further contended that during the pendency of investigation and proceedings appellant had deposited ₹ 8,36,185/- and ₹ 1.5 crore and they were in the form of Revenue deposit and since they were not adjudged as duty through the proceedings, the provisions of Section 11B and Rule 233B of Central Excise Rules, 1944 were not applicable and requested to allow refund of sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refunded to them. 5. The learned DR for Revenue has supported the Order-in-Appeal and Order-in-Original. 6. Having considered the rival contentions, we find that as held by Hon ble of Punjab and Haryana High Court and as earlier held by this Tribunal the amounts, which are deposited during the pendency of investigation and proceedings, if the same are not adjudged as duty fine or penalty then the amount that is not adjudged as duty, fine and penalty is to be treated as Revenue deposit and the provisions of refund of duty shall not be applicable to the same. The amount which has been adjudged is as per the authority of law and the amount which is in excess of the adjudged amount if retained that such retention of said amount shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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