CCE Vs. ELECTRONIC POWER CONTROL

JUDGEMENT

(1.) THE revenue filed this appeal against the order -in -appeal dated 7.5.1999 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) held that in case of pre -deposit of amount, provisions of Sec. 11B of Central Excise Act, will not be applicable.

(2.) Brief facts of the case are that the appellants are engaged in the manufacture of excisable goods and they were availing the deemed credit on aluminium scrap. A show cause notice was issued on 9.8.1999 to the respondents denying the deemed credit on the ground that scrap was clearly recognisable as 'non -duty paid. The Assistant Commissioner confirmed the demand. The appellants filed the appeal before the Commissioner (Appeals) against the confirmation of the demand and at the time of filing the appeal, the respondents deposited an amount of Rs. 2,730/ - as pre -deposit under Sec. 35F of the Central Excise Act. The Commissioner (Appeals) allowed the appeal filed by the respondents. As a consequential relief, the respondents were entitled for the amount deposited under Sec. 35F of the Act and the appellants took the credit on this count. A show cause notice was again issued to the respondents on the ground that they were not entitled for the credit and instead of taking credit, they should have filed a refund claim under Sec. 11B of the Central Excise Act. The adjudicating authority decided against the respondents. Thereafter, respondents filed the appeal and vide impugned order, the appeal was allowed on the ground that provisions of Sec. 11B of the Act were not applicable on the pre -deposit made under Sec. 35F of the Act.

(3.) RESPONDENTS relied upon the decision of the Hon'ble Bombay High Court in the case of Suvidhe Ltd. v. Union of India reported in, 1996 (82) ELT 177 (Bom) wherein the Hon'ble High Court held that the provisions of Sec. 11B of the Central Excise Act are not applicable to the deposit made under Sec. 35F of the Act as are not to be considered as payment of duty but only a pre -deposit for availing the right of the appeal and such amount is bound to be refunded. In view of the above decision of the Hon'ble Bombay High Court, I find no infirmity in the impugned order. The appeal is dismissed.