(1.) THE issue involved in this Appeal, filed by M/s. Prempreet Textile Industries Ltd., is whether the claim for refund of amount deposited by them is barred by limitation.
(2.) SHRI Prakash Shah, learned Advocate, submitted that the Appellants manufacture draw twisted yarn and twisted yarn; that their factory was searched by the Central Excise officers on 8th/9th March, 1997; that the officers alleged that few entries of Creel Register which were cancelled pertained to imported partially oriented yarn and had sold draw twist yarn in guise of twisted yarn without payment of Central Excise duty; that under pressure to pay Excise duty, the Appellants handed over six post -dated cheques totalling Rs. 20 lakhs to the Superintendent Central Excise alongwith TR -6 Challan under protest vide their letter dated 19.3.97; that the amount of six cheques was realized and credited to the account of the Central Government; that as their copies of TR 6 challans were not received from the Department, they obtained three Certificates dated 5.10.99 from the Bank of Baroda as evidence of the fact of crediting of Rs. 20 lakhs to Government's account.
(3.) THE learned Advocate, submitted that the West Zonal Bench of the Tribunal, while granting stay vide Order No. CI/1865 -68/WZB/2001 dated 16.7.2001, has treated the deposit of Rs. 20 lakhs as a pre -deposit and as finally the Order -in -Original dated 31.10.2000 demanding duty, etc. has been set aside with consequential relief vide Final Order dated 3.9.2001, they are eligible for the refund. He relied upon the decision in the case of CCE, Meerut v. Monnet Industries Ltd., 2003 (56) RLT 247 (CEGAT) wherein it has been held that as the Tribunal had considered the amount deposited during investigation as pre -deposit, "the Revenue cannot take the plea that Rs. 50 lakhs cannot be regarded as pre -deposit under the provisions of Section 35F of the Act." He, further, submitted that the finding in the impugned Order that the refund claim is barred by limitation is unsustainable as the payment was made under protest vide letter dated 19.3.2002; that moreover Commissioner (Appeals) cannot reject the refund claim on a new ground of time limit which was not taken by the original Adjudicating Authority. He also mentioned that the Deputy Commissioner has, in letter dated 13.6.2000, clearly mentioned that the amount was deposited during the investigation; that the said matter has been finally decided in the favour of the Appellants by the Tribunal and as such the claim cannot be rejected as barred under Section 11B of the Act.