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TMI Blog2025 (1) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 case of GS. RADIATORS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [ 2004 (10) TMI 158 - CESTAT, NEW DELHI] it was held that ' such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authorities on 27.01.2016, 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. 70376-70377/2017 dated 05.04.2017 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 by the original authority holding the same to be barred by limitation. 2.6 Appellate authority has dismissed the appeal filed by the appellant as per the impugned order. 2.7 Aggrieved appellant has filed this appeal. 3.1 This matter has been continuously listed for a number of time i.e. on 17.08.2023, 18.08.2023, 15.09.2023, 24.11.2023, 18.12.2023, 07.03.2024 and today i.e. 08.04.2024. While adjourning the matter on las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalized. In respect of provisional assessment for the period from 01/04/2005 to 31/03/2006 finalization was ordered through Orders-in-Original No. 180-181/ Provisional- Assessment/JPL/2008 dated 14/08/2008, Finalization of Provisional Assessment for the period from 01/04/2005 to 31/03/2006, was through Order-in-Original No. 180/Provisional-Assessment/JPL/2008 dated 14/08/2008. Through the said Order-in-Original No. 180/Provisional- Assessment/JPL/2008 dated 14/08/2008, the appellants were directed to pay differential duty amounting to Rs. 16,13,175/- through said Order-in-Original No. 181/Provisional-Assessment/JPL/2008 dated 14/08/2008, the appellants were directed to pay differential duty amounting to Rs.1,70,464/-. Both the above stated Orders- in-Original were challenged by Revenue and appeals were filed before Commissioner (Appeals) on the ground that the valuation was required to be done under Rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 and that the value should have been normal transaction value of such goods sold from such other place i.e. the place of consignment agent at or about the same time of removal of goods. The appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Tribunal. Therefore, such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order. The appeal is, therefore, allowed. 4.8 Similar view was expressed by the tribunal in case of Hawkins Cookers Ltd. [2017 (346) E.L.T. 298 (Tri. - Mumbai)] observing as follows: 5 . I find that the original dispute raised by the department is that the admissibility of Cenvat credit in respect of packing material. Due to the dispute, appellant reversed the Cenvat credit. On the said dispute appellant succeeded partly before the Tribunal. Accordingly, amount reversed was claimed as a refund. I find that this is not a case of refund of excise duty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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