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2020 (6) TMI 60 - AT - Central ExciseRefund of amount/duty paid during investigation alongwith interest - amount was paid under protest - section 11B of Central Excise Act, 1944 - period of closure of the factory as the respondent was engaged in manufacturing and packing of Jarda Scented Tobacco - HELD THAT:- There are no merit in the observation of the ld. Commissioner (Appeals) in allowing the rejected amount of ₹ 29,81,483/- when the respondent himself withdrew the refund claim in absence of documentary evidence of payment of duty for the period from July, 2015 to January, 2016. Since, the said amount was withdrawn by the respondent the adjudicating authority has no occasion to examine its admissibility and record a finding in this regard. The Commissioner (Appeals) finding that the respondent would have paid the duty during the closure of the factory is based on extraneous factors, and thus de hors the records of the case and accordingly devoid of merit, hence unsustainable in law - the finding of the ld. Commissioner (Appeals) allowing the said refund amount is devoid of merit and accordingly set aside. Interest on deposit - relevant date - HELD THAT:- Till the time the show cause notice is adjudicated, the amount paid by the respondent cannot be said to have attained finality and refundable to them. The Tribunal directed the return of the said amount deposited by the respondent during investigation in all fairness attributable to inordinate delay of adjudication of the Show Cause Notice issued by the department. Needless to emphasize it is an interim measure caused to mitigate the hardship to the respondent for the delay in adjudication by the department. But, that does not mean that respondent can retain the said amount even if the issue of classification is decided against them - the ld. Commissioner (Appeals) order directing payment of interest from the date of deposit of the said amount is also devoid of merit and accordingly set aside. Appeal allowed - decided in favor of Revenue.
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