COMMISSIONER OF C. EX., AHMEDABAD Vs. SHAYONA ENTERPRISES

JUDGEMENT

(1.) AFTER rejecting the stay petition filed by the Revenue, I proceed to decide the appeal itself inasmuch as a short issue is involved.

(2.) THE respondents are engaged in the manufacture of SS Cold Rolls patta/patti. Their factory was visited by the central excise officers on 28 -1 -2001 and a offence case was made out against them. The appellant during the course of investigation, deposited an amount of Rs. 50,000/ - towards the dues which may arise against them as a result of finalization of adjudication proceedings. The adjudication proceedings were finalized on 27 -12 -2005 when, the duty was confirmed against them and penalty imposed by the order of the Asst. Commissioner. The appellant had already deposited the entire amount of duty and also paid 25% of the penalty amount within a period of one month in terms of proviso to Section 11AC. As such, the said amount of Rs. 50,000/ - deposited by them during investigation remained to be refunded to them.

(3.) ACCORDINGLY , they applied for refund of the same, which was rejected by the Adjudicating Authority on the ground of time bar. However, on appeal Commissioner (Appeals) observed that the said deposit does not assume the character of duty till they are appropriated under a formal order. Inasmuch as, there was no order for confirmation of the said deposit towards either the duty or penalty, the same is liable to be refunded to the respondent. He accordingly allowed the assessees appeal. The said order is impugned before the Tribunal.