MAHALAKSHMI CABLE INDUSTRIES Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) THROUGH this application registered as ROM/13/09 under Section 35C(2) of the Central Excise Act 1944 (hereinafter referred to "the Act") the Appellant stating that there is a mistake apparent from Final Order No. 1641/08 -SM (Br.) passed on 28 -11 -2008 in Excise Appeal No. E/1130 of 2007 -SM 2009 (238) E.L.T. 333 (Tribunal) by Tribunal and prays for the rectification of the same. The appeal before Tribunal arose out of order in Appeal No. 04 -CE/DLH/2007 passed by ld. Commissioner (Appeals) Central Excise, New Delhi.

(2.) THE MA (ROM) further states that when the Order -in -Original No. 42/04 -05 dated 23 -6 -04 was quashed, refund arose, for which application was filed by the appellant and that was allowed by Order -in -Original No. 100/04 -05 dated 3 -12 -2005. But such order granting refund was challenged by Revenue on the ground that refund application was barred by limitation under Section 11B of the Central Excise Act, 1944 (hereinafter referred to as "the Act") and the appellant had not followed the procedure of payment of duty under protest in terms of Rule 233B of erstwhile Central Excise Rules 1944. But the appellant's grievance was that the amount of Rs. 4,12,590/ - deposited by it became due to be refunded when show cause notice No. CE -20/Mahalaxmi/SCN/R -23/MOD V/01/Pt/611 dated 27 -9 -01 was struck down in terms of Order -in -Original No. 42/04 -05 dated 23 -6 -2004. Accordingly, refund application dated 8 -9 -2005 made was well within one year from the date of Order in Original as required under Section 11B of the Act.

(3.) LD . Counsel appearing on behalf of the appellant submitted that following the law laid down in the case of Mafatlal Industries (supra), refund of the deposit that was made during investigation is not governed by Section 11B of the (sic) ry by the Tribunal by order dated 28 -11 -2008 is an apparent (sic) to him a question of law having arisen from the order of (sic) the mistake apparent and rectifiable. He relied on the decision of (sic) Pvt. Ltd. v. Commissioner, Trade Tax, U.P. reported in 2008 (sic) = 2008 (9) S.T.R. 113 (S.C.) to argue that the mistake of the (sic) by Tribunal is an apparent mistake from record and rectifiable. If any error of law is committed that shall be a case of apparent mistake.