TMI Blog2021 (9) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1944 and section 129E of the Customs Act, 1962. ₹ 9.23 lakh out of said ₹ 15 lakh is payment which was made by the appellant at the investigating stage and as such has been allowed to be considered as a payment towards pre-deposit. Remaining ₹ 5.77 lakh were paid by the appellant during the pendency of his Civil Miscellaneous Application before the Delhi High Court i.e. on 16.5.2016 - Both these amounts ( ₹ 9.23 lakh and ₹ 5.77 lakh) admittedly is an amount toward pre-deposit as was made by filing the appeal before this Tribunal. Since the demand is not yet been confirmed, the appropriation of money of pre-deposit against the proposed demand is highly unreasonable and is rather illegal. The order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has already deposited ₹ 9.32 lakh, only ₹ 5.77 lakh was to be deposited. Same was also observed to be deposited on 16.5.2016. Accordingly, this Tribunal was directed by the Hon ble High Court to hear the appeal on merits. In compliance of the said directions, this Tribunal vide Final Order dated 02.11.2017 allowed the appeal remanding the matter back to the Commissioner (Appeals) directing to re-decide the issue based upon the decision of Hon ble Apex Court given in the case of CCE Kerala vs. M/s. Larsen and Toubro Ltd. reported in [2016 1 SCC 170 ] and decision of Tribunal in the case of Bhayana Builders Pvt. Ltd. reported in [2013 (32) STR 49 (Tri-Del)]. 2. Pursuant to the said order, the appellant filed refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under challenge being passed in total violation of law and ignorance of Circular No. 984/8/2014 dated 16.9.2014 is alleged to be absolutely wrong, accordingly, is prayed to be set aside and appeal is prayed to be allowed. 4. While rebutting these arguments, learned Departmental Representative has submitted that Commissioner (Appeals) has reasonably explained non applicability of said circular upon the amount of ₹ 15 lakh involved in the present appeal. It is submitted that the Commissioner (Appeals) has dully and diligently verified the entire evidence on record for forming the opinion that the appellant has failed to discharge his service tax liability. It is on that count that the refund claim has rightly been rejected. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notices are still pending adjudication since the remedy of appeal has already been availed by the appellant. Recovery of demand confirmed by the Commissioner (Appeals) cannot be initiated as is apparent from Section 129. Since the adjudication is still open in terms of order of this Tribunal dated 20.11.2017, the appropriation of amount of pre-deposit made by the appellant against the demand proposed in the impugned show cause notices is highly against the statutory provisions. The findings are, therefore, liable to be set aside. 8. Further, I have perused the Circular No. 984/8/2014 dated 16.9.2014 which clarifies that 2. Quantum of pre-deposit in terms of Section 35F of Central Excise Act, 1944 and Section 129E of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 10%, subject to the limit of ₹ 10 crores, can be considered to be deposit made towards fulfillment of stipulation under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. Any shortfall from the amount stipulated under these sections shall have to be paid before filing of appeal before the appellate authority. As a corollary, amounts paid over and above the amounts stipulated under Section 35 F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, shall not be treated as deposit under the said sections. 3.2 Since the amount paid during investigation/audit takes the colour of deposit under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable unless such order is stayed by a competent Appellate Authority. 5.4 In the event of a r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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