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2021 (3) TMI 838 - HC - Service TaxRecovery of excess pre-deposit made - pendency of appeal where the assessee demonstrates proof of payment of 7.5% or 10% as may be applicable - Section 35F of the Central Excise Act, 1944 - HELD THAT:- It is only a technical contention taken by the petitioner. In light of the order passed by the appellate authority on the application for condonation of delay in the appeal, whereby the appellate authority has rejected the assertion of the Department as regards delivery of notice on 30.10.2019 as the notice was not in requisite Form i.e., ST-4, it is not open for this Court to enter into the question of appeal having been filed beyond the period of limitation and hence permit the recovery. If that were to be so and appeal was presented within the period of limitation, as noticed by the appellate authority, the petitioner was entitled to the benefit of prohibition of recovery from the date of institution of appeal which would extend to prohibition of any recovery subsequent to 08.01.2021, which would include prohibition of Citi Bank making payment to the Department Thus, recovery of a sum of ₹ 2,52,85,310/- made as per the Demand Draft bearing No.620628 favouring “the Principal Commissioner of Central Tax, GST Bangalore East Commissionerate”, dated 11.01.2021 referred to at Annexure-J, being illegal, such recovery is set aside while observing that any further action for recovery is to be made only in terms of Paragraph No.4.3 of the Circular dated 16.09.2014 - petition disposed off.
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