Pre-deposit under Section 35-F is not a payment of duty.

( 1 ) PETITIONER, Nestle India Limited is seeking for a direction directing the respondent to refund a sum of Rs. 77,10,277. 00 made over by the petitioner as pre-deposit before the Tribunal.

( 2 ) PETITIONER manufactures instant coffee powder falling under Chapter 21 of the Schedule to the Central Excise Tariff Act, 1985. Petitioner had been filing price lists availing certain deductions from the sale price at depot for the purpose of determination of assessable value. Provisional assessments for the period 1991-94 were finalised by the respondent by his order dated 29-3-1996/10-5-1996. Respondent allowed deductions claimed in the said order. Respondent also ordered that the jurisdictional Superintendent should finalise the assessment from january 1995 onwards in accordance with the said order. Total amount demanded worked out to Rs. 7,87,26,491. 00. Aggrieved by the same, petitioner filed an appeal before the Commissioner of Customs and central Excise (Appeals) challenging the rejection of claims made by the petitioner for deduction towards interest on receivables and non-recover-able taxes, such as turnover tax, octroi, etc. Appellate Authority in terms of its order dated 16-9-1997 directed the petitioner to pay a sum of Rs. 7 crores as pre-deposit for taking up the appeal in terms of Section 35-F of the Central Excise Act. Petitioner paid the entire sum of Rs. 7 crores in terms of the interim order. Appellate Authority in terms of his orderdated 31-7-1998 allowed the deduction towards octroi as an abatement but rejected the appeal with regard to deduction on account of turnover tax and interest on receivables. Petitioner thereafter filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal ("cegat", for short ). The Tribunal accepted the contention of the petitioner and remanded the case for de novo adjudication and redetermination. In terms of this order, requantification was taken up by the respondent on 15-7-1999. Petitioner gave necessary information to the respondent. Respondent by his order in original dated 28-12-1999 requantified the same and confirmed the demand for a sum of Rs. 6,22,89,723. 00 being the differential duty payable by the petitioner. Petitioner had already made over Rs. 7 crores towards pre-deposit. Petitioner, therefore sought refund of the balance sum of Rs. 77,10,277. 00 being the difference in the amount of pre-deposit of Rs. 7 crores and the demand of Rs. 6. 22 crores. Respondent issued an endorsement at annexure-E stating therein that the petitioner has to file regular refund claim under Section 11-B of the Central Excise Act along with all relevant documents. Petitioner thereafter by a letter contended that Section 11-B has no application to cases of pre-deposit since that was not a payment of excise duty. Respondent by his letter dated 3-5-2000 informed the petitioner that there is no provision of law other than Section 11-B of the Central Excise Act under which money could be refunded. It is in these circumstances, petitioner is before me.

( 3 ) NOTICE was issued and the respondent has filed statement of objections. Respondent has referred to various facts and ultimately states that the contention of the petitioner that the pre-deposit is not an excise duty is not correct and that the pre-deposit made by the petitioner as a pre-condition to admit the appeal is nothing but the duty demanded by the adjudicating authority. Except Section 11-B there is no provision for refund of money under the Central Excise Act. Respondent has further contended that the petitioner has unnecessarily dragged the respondent to this Court. This affidavit is dated 23-1-2002.

( 4 ) HEARD the learned Counsels for the parties.

( 5 ) LEARNED Counsel appearing for the petitioner would contend that the action of the respondent is unsustainable in law and requires reconsideration. According to the learned Counsel, pre-deposit cannot be equated to excise duty as understood in law. He