ORDER
Archana Wadhwa, Member (J)
1. The Revenue being aggrieved with the order of Commissioner (Appeals) has filed the present appeal. I have heard Shri T.K. Kar, ld. SDR and Shri S.K. Mukherjee, ld. Adv. appearing for the respondents. As per the facts involved the appellants claim of Modvat credit of Rs. 5.18 lakhs (approx.) rejected by the Asstt. Commr. The said order of rejection was upheld by Commissioner (Appeals). Thereafter the respondents filed an appeal before the Tribunal and vide its Order No. A-101, dated 9-2-98 [1998 (99) E.L.T. 236 (T)], the appeal was allowed and the respondents were held to be entitled to the benefit of Modvat credit. In the meanwhile the appellant had reversed the credit availed by them originally. On receipt of the Tribunal’s order they applied for refund of the said amount. Subsequently they took the credit suo motu and intimated the Revenue that their refund claim be considered as settled. Action was taken against them and the Asstt. Commr. rejected their refund claim on the ground of time bar. On an appeal against the above order Commissioner (Appeals) observed that inasmuch as the money was deposited after first adjudication by the Revenue, the question of time bar does not arise. He also observed that the assessments were provisional and not finalised. Accordingly he set aside the order of the Asstt. Commr.
2. After considering the issue involved I find that with the passing of the Tribunal’s order in favour of the respondents, they become automatically entitled to the consequential relief arising out of the said order. Inasmuch as the appellant had deposited the amount prior to hearing of their appeal by the Tribunal and in terms of the orders passed by the authorities below, they become entitled to the refund of the amount as soon as the orders of the authorities below were set aside. The Tribunal in its latest decision in the case of Jyoti Ltd. v. CCE, Vadodara – 2003 (151) E.L.T. 178 (Tribunal) = 2003 (54) RLT 349 (CEGAT -Mumbai) has held that duty and penalty paid in terms of the adjudication order and appeal filed against the same, appellants become entitled to refund of duty and penalty paid without filing fresh refund claim when their appeal is allowed and refund claim cannot be considered as time barred inasmuch as payment is in the nature of as deposit. The Revenue in its grounds of appeal has submitted that the said amount was deposited by the appellant on its own and not in pursuance of any order of the Court and as such the same should not be allowed to be refunded to them. I do not agree with the above contention of the Revenue. Suo motu payment as a condition of hearing of the appeal in terms of the provisions to Section 35F cannot be placed on a different pedestal than the deposit made in terms of the Tribunal’s order or in pursuance of order of any other Court. In these circumstances I find no merits in the Revenue’s appeal and reject the same.