Full Judgment
2. The only issue involved in this case is whether time limit prescribed under Section 11B of the Central Excises and Salt Act, 1944 would be applicable in respect of refund of duty deposit made pursuant to the direction of the Commissioner (Appeals) for entertaining the Respondents appeal on merits as per the statutory requirement laid down under Section 35F of the Act.
3. Since the issue canvassed both in the stay application as well as in the appeal remains the same, we have taken up the appeal itself for disposal with the consent of both the sides.
4. Shri K.M. Mondal, the ld. SDR pleads that even the deposit of duty demanded as per the requirement of Section 35F of the Act is covered by the provisions of Section 11B. The wording of the amended section does not distinguish between the duty and deposit anywhere. Hence in the absence of a claim made for refund within six months or the duty deposit not paid under protest, time limit under Section 11B can be applicable.
5. After hearing both the sides, we are unable to agree with the contention raised by Shri K.M. Mondal, the ld. SDR. Any demand confirmed by the lower adjudicating authority, if challenged by way of appeal, as provided under the law, the appeal itself could be construed to be a protest against demand. Moreover, as per the statutory requirements, if the amount is required to be deposited, so that the appeal could be heard on merits, that payment cannot be construed to be a voluntary payment and has to be construed only as a payment for fulfilling the statutory obligations. When the assessee succeeds in the appeal and the amount paid in fulfilling the statutory requirements under Section 35F of the Act becomes refundable to them, the question of bringing in the time limit prescribed under Section 11B or insisting on a separate letter of protest before payment, does not arise. We therefore see no merit in the appeal. Hence we dismiss the appeal and the stay application may also be treated as disposed of accordingly.