Point of Law: Provisions of Section 11B that it governs refund of duty and interest from the relevant date and not penalty. Considering the provisions of Section 11B (supra), I find that the amount of penalty paid by the applicant is refundable. Since refund of penalty is not covered under Section 11B, the condition of filing of refund claim within one year from the relevant date is not applicable for refund of penalty.

JUDGMENT :

GITA GOPI , J.

1. By way of this petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for the issuance of the Writ of Mandamus or any order in the nature of Mandamus, quashing and setting aside the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (for short, “the Tribunal”) in (i) Final Order No.13327/2017 (In Central Excise Appeal No.11173 of 2014-SM) dated 13.10.2017 as also the order (ii) in Order No.M/10366/2018 dated 04.05.2018 issued on 21.05.2018; on the ground that the said orders are unjust, improper and violative of the principles of natural justice. The petitioner has also challenged the above orders on the ground that the learned Tribunal was not justified in rejecting the application for restoration, without appreciating the facts of the case as also the submissions made by the petitioner while considering that recalling of the order would amount to review of its earlier order. A ground has also been raised that the learned Tribunal has not considered the principle laid down in the cases of (i) J.K. Synthetics Ltd. v. Collector, 1996 (86) ELT 472 (S.C.) (ii) Viral Laminates Pvt. Ltd. v. Union of India, 1998 (100) ELT 335 (Guj.) and (iii) Shivam Casting v. Union of India, 2017 (351) ELT 131 (Guj.).

2. The petitioner herein is engaged in the business of manufacture of brass / copper articles classifiable under Chapter 74 of the Schedule to the Central Excise Tariff Act, 1985. It is the case of the petitioner that on 10.02.2006 the Officers of the Directorate General of Central Excise Intelligence (DGCEI) visited the factory premises of the petitioner and impounded certain documents. It was alleged that the petitioner had clandestinely cleared excisable goods and accordingly, was asked to deposit the Central Excise Duty to the tune of Rs.5,94,953/- leviable on the articles of copper valued at Rs.36,45,545/- under Section 11A of the Central Excise Act, 1944 (for short, “the Act”) by invoking the extended period of five years as per proviso to sub-Section (1) of Section 11A of the Act. During the course of investigation, the petitioner had paid the amount of Duty so demanded and was, thus, asked to tender its explanation as to why the amount of Duty so paid should not be appropriated against the total Duty demanded.

3. The Additional Commissioner, Central Excise, Ahmedabad-III passed the Order-in-Original No.11/ADC (SC)/2010 dated 02.08.2010 confirming the Demand raised by the respondent-Department and thereby, directed that the amount paid by the petitioner be appropriated against the demand raised by the Department. The petitioner was also ordered to pay Interest at the rate prescribed under the provisions of Section 11AB of the Act as also Penalty on the amount so demanded under Section 11AC of the Act read with Rule 25 of the Central Excise Rules, 2002 on the conditions stated in the order. The petitioner was also directed to pay Rs.1,00,000/- as Penalty under Rule 26 of the said Rules. The said order dated 02.08.2010 was confirmed by the Commissioner (Appeal-III), Central Excise, Ahmedabad, by order dated 29.10.2010 issued on 03.11.2010 passed in Order-in-Appeal No.175 to 176/2010.

4. Aggrieved by the said order of the Commissioner (Appeals), the petitioner filed an appeal before the Tribunal in Appeal No.E/1741 & 1742/2010. After considering the facts of the case and certain judgments, the learned Tribunal came to the conclusion that the allegations levelled in the Demand-cum-Show Cause Notice were not sustainable and accordingly, allowed the appeal with consequential relief by judgment and order dated 26.09.2011. Pursuance to the judgment and order dated 26.09.2011 passed by the Tribunal, the petitioner made application dated 12.02.2013 to the respondent-Department praying for refund of the amount of Rs.7,46,864/- deposited by the petitioner.

5. It is the say of the petitioner that the Tribunal had granted uncondition