1. The appellants' factory was visited by the officers of DGAE, Calcutta on 29.8.96, who searched their factory premises and seized various records/documents for the alleged evasion of duty. During the post seizure investigations the appellants deposited in toto, an amount of Rs. 9,19,286/- (rupees nine lakh nineteen thousand two hundred eighty six) under the cover of various letters. The first such amount of Rs. 5,00,000/- (rupees five lakh) was deposited by pay order dt.
2.9.96 and the appellant vide their letter dt. 2.9.96 addressed to the Deputy Director General stated that - "kindly deposit this amount in their suspense amount subject to adjustment of excise duty after scrutinising our records held by him". To the same effect were the other letters dt. 3.9.96, 6.9.96 and 23.9.96 when some more amounts were deposited by the appellant.
2. Subsequently show cause notice was issued to the appellant on 6.1.97 proposing confirmation of demand of duly of Rs. 13,00,000/- (approx.)(rupees thirteen lakh). The said show cause notice was adjudicated upon by the proceedings were dropped against the appellant and show cause notice vacated.
3. On dropping of the proceedings by the Commissioner vide his order dt. 31.10.97, the appellant approached the Revenue on 5.2.98 for refund of the amount so deposited by them during adjudication. However, they were issued a show cause notice on 9.2.99 seeking to deny the refund of the said amount on the ground of time bar as also on the ground of unjust enrichment. The said show cause notice culminated into the impugned order passed by the Asst.Commissioner rejecting the refund on the ground of time bar. Appeal against the same did not succeed before the Commissioner (Appeals). Hence the present appeal.
4. I have heard Shri K.K.Banerjee, ld.adv. for the appellants and Shri A.K.Mondal, ld.JDR for the Revenue. Shri Banerjee pleaded that the amount deposited by them during investigations cannot be equated with duty inasmuch as during the relevant point of time, there was no duty confirmation against them. As such the provisions of Section 11B will not apply to their case. He also submitted that in any case and in any view of the matter the refund was claimed within a period of six months from the date of receipt of the order of the commissioner dropping the charges against them. He further pleaded that while depositing the amount in question, they had clearly intimated that the same may be held as suspense account and such deposit is not towards any duty. Shri Banerjee also refers to a number of decisions of the Tribunal holding such deposit made during investigation, is not hit by the provisions of Section 11B.5. Shri A.K.Mondal ld.JDR submits that preamble of their letters clearly show that the same was deposited as duty. As such the same has been rightly rejected by the lower authorities as barred by limitation inasmuch as no protest was lodged at the time of deposit of the said amount.
6. After carefully considering the submissions made from both the sides I find that the issue is no more res integra. The Tribunal in the case of Suri Industries Ltd.-2001(45)RLT 553 (CEGAT-Bangalore) has held that any amount deposited during investigation of the case and subsequently show cause notice issued having been dropped by the adjudicating authority, should be considered as deemed to have been made under protest. The refund of the same cannot be held to be time barred.
7. Similarly in the case of Kota Oxygen-2001(130)ELT 889 (Tribunal-Delhi), it was held that duty deposited by party while pursuing appellant remedy to be considered as duty paid under protest and limitation of six months is not applicable. I also find that the Hon'ble High Court of Gujarat in the case of Parle International Ltd. v. UOI has held that the amounts deposited by the petitioner during adjudication proceedings to be regarded as deposit and not duty. When appeal filled by the petitioner is subsequently allowed by the Tribunal doctrine of unjust enrichment is not applicable to such deposits nor the provisions of Rule 230B of Central Excise rules, 1944 are applicable.
8. I also find force in the appellants' submission that the deposits were made by the appellant not as duty, but as deposits. This also flows from the fact that during relevant period there was no duty confirmation against the appellant and as such the deposits made by the appellant cannot be equated to any duty so as to invoke the provisions of Section 11B. As such I do not find any merits in the Revenue's contention that the amounts so deposits by the appellant during the investigation period is not liable to be appellant during the investigation period is not liable to be refunded to them, even when the adjudication proceedings have been held to be in their favour.
Accordingly I set aside the impugned order and allow the appeal with consequential relief to the appellants.