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2021 (6) TMI 952 - CESTAT NEW DELHIRefund of Excise Duty - Duty was paid during investigation is amount to paid under protest or not - excess stock - S.S. Ingots - rebuttal of presumption - proof of delivery of notice - HELD THAT:- The impugned order has been passed on the presumption by the Commissioner (Appeals) that the order-in-appeal dated 28.05.2012 was served on the appellant, on the basis of evidence of despatch and the contention of the Department that such despatch was not returned back by the Post Office. It is found that the learned Commissioner have erred in making the presumption in absence of proof of delivery produced by the Department. During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through registered post or speed post to the person for whom it was entitled or his authorised agent with acknowledgement due or proof of delivery. Thus it was incumbent upon the Revenue to produce evidence of delivery or service which is the mandate as per Section 37C(1)(a) of the Act. In absence of proof of delivery, order dated 28.05.2012 cannot be deemed as served on the appellant, as has been held by the Hon’ble Rajasthan High Court in the case of M/S RP CASTING PVT LTD VERSUS THE CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANR [2016 (6) TMI 996 - RAJASTHAN HIGH COURT]. The amount in question was collected by the Department without issue of show cause notice at the investigation stage, and further the appellant have contested the show cause notice, as well as, has been constantly in appeal pursuant to adjudication, and thus the amount in question is held to be deposited ‘under protest’ ipso facto - Hon’ble Madras High Court in the case of CCE, Coimbatore vs. Pricol Ltd. [2015 (3) TMI 735 - MADRAS HIGH COURT] has held that any amount deposited by pre-deposit or during the course of investigation, is definitely in the nature of deposit ‘under protest’. It is directed that the Adjudicating Authority to grant interest @ 12% per annum from the date of deposit till the date of refund - appeal allowed - decided in favor of appellant.
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