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2023 (8) TMI 847 - AT - Central ExciseCalculation of interest on refund sanctioned - relevant dates - refund of pre-deposit made while filing the appeal before the tribunal is due from 3 months of passing of remand order by the Tribunal or after 3 months of passing order in de novo adjudication? - HELD THAT:- The pre-deposit for which the appellant has sought for the refund was paid specifically for entertaining the assessee’s appeal by this tribunal, once the appeal was disposed of by way either setting aside the demand or by way of remand to the adjudicating authority, the demand of duty does not exist for the time being, therefore the amount of pre-deposit became refundable to the assessee. on the order of the tribunal the contention of the department in this case is that the refund is matured from the date of de novo adjudication order has no relevance for the reason that de novo adjudication is nothing to do with the pre-deposit made under Section 35F before this Tribunal. From the circular No. 802/35/2004-CX dated 8 December, 2004, it was categorically clarified and reiterates their earlier circular that in case of refund of Pre-deposit the dead line for refunding, this pre-deposit is 3 months from the date of Tribunal’s order, accordingly if the refund is not granted within 3 months from the date of Tribunal’s order thereafter the department is bound to pay the interest to the claimant - As regard the revenue’s contention that the appellant have not filed the proper refund claim - it is found that in various judgments it has been settled that as regard refund of pre-deposit, there is no requirement for filing a refund claim. The department must give the refund suo moto on the basis of Tribunal’s order therefore merely because the appellant have not filed the proper refund claim within 3 months of the Tribunal order, department cannot be absolved from the liability of interest on the refund of pre-deposit. This issue has been considered in VOLTAS LIMITED VERSUS UNION OF INDIA [1998 (11) TMI 137 - HIGH COURT OF DELHI] where it was held that once the order of adjudication was set aside, the Tribunal could not have ordered the amount of pre-deposit to be retained awaiting the order of adjudication. There is no provision in the law requiring certain amount to be retained as a pre-deposit pending finalisation of the adjudication proceedings. As the amount is being withheld without any authority of law, it is liable to be refunded. Thus there is absolutely no doubt that appellant are entitled for the interest from the 3 months of the order of the tribunal till the refund was granted - appeal allowed.
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