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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... ary deposit. Further appellant have contested the demand and have finally succeeded in getting the same set aside by the tribunal. As the appellant was contesting the demand the amount paid by them were necessarily not paid voluntarily but were paid under compulsion from the officer and were paid under protest. It is a settled law that any amount which becomes due to the appellant consequent to an Appellate order the deposits should have been refunded to the appellant. In the case of GS. RADIATORS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [ 2004 (10) TMI 158 - CESTAT, NEW DELHI ] it was held that ' payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring/decision dated 08.05.2014 and this CESTAT's Order was dictated and pronounced in open court, therefore, the appellant cannot take a plea for not receiving order copy when his advocate is present in the Court on the date of decision and the decision was pronounced in his presence. 6. Further the Appellate Commissioner is not empowered under Limitation Act, 1963 to condone the delay in filing refund claim and there is no provision in Section 11 B to condone such delay in filing of refund claim beyond one year from relevant date. Therefore, I find no infirmity in the order of the Adjudicating Authority as the provisions of the Section 118 of the Central Excise Act, 1944 is crystal clear regarding filing refund claim within one year fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming refund of amounts deposited by them as per the direction of the officers of the revenue who visited their premises on 18.02.2009 and detected certain shortages in stock. 2.2 A show cause notice was issued to the appellant in respect of the shortages detected. It was adjudicated confirming the demand and also imposed penalties on the appellant. 2.3 Tribunal vide its final order no 52191-52193/2014-SM dated 08.05.2014 set aside the demand and penalties and allowed the appeal with consequential relief to the appellant. 2.4 Consequent to tribunal order, Appellant filed a refund claim seeking refund of the amount deposited by them at the time of visit by officers as per their directions on 27.01.2016. 2.5 The refund claim was rejected b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, holding the same to be barred by limitation as provided by Section 11B of the Central Excise Act, 1944. The refund claim has been filed by the appellant on 27.01.2016, as a consequence of the order dated 08.05.2014 of tribunal. 4.3 Appellant have claimed that the order of tribunal was never received by them and they filed the refund claim on the basis of the copy of the order downloaded by them from the website of CESTAT, in January 2016. Since the refund claim was filed on 21.07.2016, the same is filed within the prescribed period of limitation. From perusal of the Final Order dated 08.05.2014, it is evident that the order was Dictated and Pronounced in the open court , in presence of the counsel for the appellant Shri Rajesh Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be noted that the amounts paid by the appellant were in respect of the shortages of the raw material detected by the officers at the time of visit. The amounts deposited could not have acquired the character of duty till the time they have been cleared from the premises of the appellant. Tribunal has clearly held that the charge of clandestine clearance of these goods cannot be established. Hence the amounts deposited do not acquire the character of duty . The expressions used in the Section 11B are in respect of refund of Duty and not the refund of deposits made complying with the directions of the officers. 4.7 It is a settled law that any amount which becomes due to the appellant consequent to an Appellate order the deposits should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid on final product whereas originally it is an amount of Cenvat credit which was reversed under protest and on succeeding, the appellant claimed refund. In my considered view, even there is no need of filing refund claim in case of succeeding in a matter of dispute on Cenvat credit. In the present case, even if the amount is towards reversal of Cenvat credit but it is as good as availment of fresh Cenvat credit therefore unjust enrichment is not applicable for availment of Cenvat credit. In the present case also refund of Cenvat credit need not to be undergone the test of unjust enrichment. The judgment cited by the ld. Counsel supports the case of the appellant. I therefore set aside the impugned order and allow the appeal of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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