2018 (2) TMI 1246 – CESTAT NEW DELHI – TMI – Refund of duty paid – refund claim was rejected by the authorities below on the ground that this Tribunal has considered the issue of imposition of penalty and observed that confirmation of the demand along with interest is to be appropriated in terms of Section 11A (2B) of the Act – Held that: – the amount paid during the course of investigation by the appellant along with interest has been appropriated by this Tribunal. In that circumstances, the refund claims are not maintainable. Therefore, the authorities below has rightly rejected the refund claims of the appellant – appeal dismissed – decided against appellant. – Appeal No. E/51810/2017-SM – Final Order No. 50548/2018 – Dated:- 5-2-2018 – Hon ble Mr. Ashok Jindal, Member ( Judicial ) Shri Sandeep Mukherjee, C.A. – for the appellant Shri K. Poddar, D.R. – for the respondent ORDER Per Ashok Jindal The appellant is in appeal against the impugned order wherein the refund claim of duty pa
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t on the premise that as they have paid duty along with interest, therefore, extended period of limitation is not invocable. This Tribunal considering the aspect of imposition of penalty on the appellant has taken note of the fact and hold that in this case extended period of limitation is not invocable for imposition of penalty. Further, also observed that as the appellant is paid entire amount of duty along with interest during the course of investigation itself, the same is required to be appropriated in terms of Section 11A(2B) of the Central Excise Act, 1944 and no show cause notice was required to be issued. Thereafter, the appellant has filed this refund claim. The refund claim was rejected by the authorities below on the ground that this Tribunal has considered the issue of imposition of penalty and observed that confirmation of the demand along with interest is to be appropriated in terms of Section 11A (2B) of the Act. Therefore, refund claim are not entertainable. Against th
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e findings as under : 8. In view of above, I am of the considered opinion that there is no element of suppression, wilful misstatement, fraud etc. involved in the present case, justifying invocation of the extended period of limitation for issuance of the show cause notice and for adjudication of the proceedings, especially for the purpose of imposition of mandatory penalty. I am also of the view that since, the entire duty liability along with interest has been paid by the appellant before issue of show cause notice, the appellant should get the benefit of provisions of Section 11A (2B) of the Central Excise Act, 1944, according to which, there was no requirement of issuance of show cause notice, once the duty along with interest has been paid. Further, since the ingredients mentioned in the proviso to Section 11A and Section 11AC of the Central Excise Act are absent in the present case, the question of imposition of penalty does not arise. 7. On going through the said findings of thi
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