JUDGMENT
Gowri Shankar, Member (Technical)
1. The question for consideration in this appeal is whether the appellant is entitled to the refund of Rs. 4.36 crores which it deposited as duty pending appeal to the Tribunal, in pursuance of the order of the Commissioner passed on 31.12.91 as duty. The Commissioner (Appeals) has confirmed the finding of the Dy. Commissioner that the assessee having failed to establish that the incidence of duty has not been passed on, the amount which he accepts is available as refund, should be credited to Consumer Welfare Fund and not refunded to the appellant.
2. The judgment of the Tribunal in Suvidhe Ltd. v. UOI 1996 (82) ELT 177 makes it clear that a deposit ordered under Section 35F is not subject to the provisions of Sub-section (2) of Section 11B. The objection of the departmental representative is that the amount was deposited not in pursuance of the order of the Tribunal, but before the appeal was filed. Therefore it is not a deposit made under Section 35F. We are unable to agree. Section 35F provides for deposit pending appeal of a person “desirous of appealing against” the order which demands the duty or imposing a penalty. Therefore any deposit made after the order of adjudication would be a deposit pending appeal of the duty or the penalty. The trade notice 44/2000 dated 19.6.2000 of the Mumbai Commissioner reproduced in 2000 (39) RLT M 71 also clarifies that refund application under Section 11B need not be filed for return of such deposit. Apart from this, it will be clear that the amount which the appellant deposited in 1992 in respect of duty alleged to have been short levied for goods cleared between 1984 and 1989 could not be related to the incidence of duty which passed on the goods. Sub-section (2) of Section 11B will not apply.
3. Appeal is accordingly allowed and the impugned order set aside. The appellant is entitled to the refund of the duty.