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TMI Blog2023 (2) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, limitation of Section 11B is not applicable. This Tribunal considered identical issue in the case of SUN PHARMACEUTICAL INDUSTRIES LTD VERSUS C.C.E. S.T. -DAMAN [ 2022 (6) TMI 1176 - CESTAT AHMEDABAD ] has held that in case of PLA balance, it is not deposited as a duty but it is deposited as advance towards the duty. The PLA Amount takes the color of excise duty only when it is utilized for payment of duty on clearance of excisable goods. The unspent balance of PLA is only advance not duty therefore, Section 11B is not applicable. Appeal allowed - decided in favor of appellant. - EXCISE Appeal No. 10303 of 2021-SM - FINAL ORDER NO. A/10263 / 2023 - Dated:- 7-2-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri PK She ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an advance deposit for future payment of duty. The PLA balance takes the color of duty only when duty payable is debited from the PLA balance. In the present case, undisputedly the PLA balance for which refund is sought for is out of advance deposit made by the appellant in PLA and out of that unutilized balance has been claimed as refund. Therefore, limitation of Section 11B is not applicable. This Tribunal considered identical issue in the case of Sun Pharmaceutical Industries Limited (supra) and passed the following order:- 4. I have carefully considered the submission made by both sides and perused the records. I find that the Learned Commissioner (Appeals) rejected the refund claim on the ground that the limitation under 11B is ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has recorded that the said provision has been incorporated as an abundant precaution to ensure that even by mistake, the provision of unjust enrichment is not applied for such refund. He also records that since there is a specific provision for refund of PLA balance under Rule 9(1A) and 173G(1A) of the said Rules, therefore, such refund would be squarely covered under the said Rules and not under Section 11B of the Central Excise Act. 1944. which applies only for refund of duty. He has, therefore, recorded that the provisions of Section 11BB of the Central Excise Act, 1944 granting interest for delayed refund of duty is not attracted in the present case. 3. After hearing, perusal of the records and relevant provisions as mentioned abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er concerned. Neither the law of limitation nor the theory of unjust enrichment is applicable on such deposit. It is the money belonging to the appellant and has a right to withdraw it. There is a distinction between the amount appropriate towards duty and amount deposited for payment of a duty. In a former case duty which has only been levied and paid evidently becomes the property of the Government and no person would be entitled to get it back unless there is a provision of law to enable that person to get the duty already appropriated back from the State or the Government. In the latter case, however, when an amount has been deposited to be appropriated thereafter towards duty which may fall due there having no appropriation, the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities have rightly rejected claim for the appellant. Meeting to such point, the ld. Counsel has submitted that the Central Board of Excise Customs has already issued instruction vide F. No. 202/24/72-CX. 6, dated 6-1-78, in consultation with the Ministry of Law to the effect that un-utilised amount in PLA is refundable to the appellants and relying on this instruction, the appellant submitted that this Bench has already decided such matter in the case of Jay Shree Tea Industries Ltd. v. Commissioner of Central Excise, Kolkata reported in 2005 (190) E.L.T. 106 (Tri.-Kolkata). 4. On the basis of the above decision, the appellants cannot be denied of justice and cannot be un-equally treated under law. It is judicial descipline tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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