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2021 (2) TMI 844 - HC - Central ExciseSeeking for restitution of amount deposited by petitioner - petitioner had voluntarily deposited the amount only with a view to avoiding the amount of interest, penalty etc. - HELD THAT:- There is no quarrel to the proposition that if any payment is made by the assessee, as a condition precedent for hearing an appeal, the same does not bear the character of duty, but has the character only of security deposit and the same is required to be refunded the day appeal is disposed of by the authorities inasmuch as, the parties are put back to the situation of a show cause notice against the assessee being adjudicated by the authority. Therefore, the deposit made during the course of investigation and before the issuance of the show-cause notice or for hearing of the appeal, the assessee is entitled for the refund in the event of the appeal being allowed and remanded to the Adjudicating Authority for de novo consideration. It is well settled proposition of law that there is always peril in treating words of a judgment as though they are words in a legislative enactment; it is to be remembered that judicial pronouncements are made only stating all facts of a particular case. It has been settled in catena of decisions of the Apex Court that circumstantial flexibility, one additional or different fact may make a difference between conclusion in two cases. Disposal of cases by merely placing reliance on a decision is not desirable. Precedent should be followed only so far as it marks path of justice - The Apex Court, in the case of Haryana Financial Corporation and Another vs. Jagdamba Oil Mills [2002 (1) TMI 1266 - SUPREME COURT] has held that placing reliance blindly on the judgment is not proper. Factual situation between the decided cases and the case at hand are required to be gone into. M/s. Balaji Enterprises appears to have exported 221 consignments of the goods manufactured by it during November, 2003 to September, 2004 and has claimed rebate of excise duties paid by it on the exported goods. The Central Excise authorities, after scrutinizing the rebate claims, sanctioned the same as well as paid the rebate for all the 221 exported consignments. Regular orders, sanctioning the rebate to the tune of ₹ 7,06,66,186/- (Rupees seven crore six lac sixty six thousand one hundred & eighty six only) have been passed by the officer concerned having jurisdiction. This led to the inquiries against M/s. Balaji Enterprises on the basis that rebate claims were erroneously paid to it inasmuch as, it is alleged that M/s. Balaji Enterprises had not received any duty paid inputs and materials from its suppliers, including the petitioner. The said inquiry/investigation led to issuance of the show cause notice dated 15.2.2007 by Directorate General of Central Excise Intelligence (DGCEI) to M/s. Balaji Enterprises as well as others, including the petitioner, inter alia, proposing imposition of penalty. The show cause notice dated 5.2.2007 was issued by the DGCEI to M/s. Balaji Enterprises and other ten noticees, including the petitioner, which was adjudicated by the Adjudicating Authority and M/s. Balaji Enterprises, M/s. MSN Enterprises and M/s. Krishna Impex were jointly and severally held liable. This Court is conscious of the fact that vide order dated 10.7.2019, the appeal filed by the petitioner has been allowed quashing the order dated 30.3.2011 qua the petitioner and two others, however, the fact remains that the order dated 30.3.2011 of the Adjudicating Authority cannot be said to have been quashed in its entirety. Owing to the failure on the part of M/s. Balaji Enterprises in depositing the amount and consequent rejection of appeal, the order dated 30.3.2011 passed by the Adjudicating Authority, attained finality so far as M/s. Balaji Enterprises and M/s. Krishna Impex are concerned. Further, as emerges from the order, common findings have been recorded by the Adjudicating Authority of holding, M/s. Balaji Enterprises, M/s. MSN Enterprises and Krishna Impex, jointly and severally liable for taking the benefit of rebate. Therefore, it cannot be said that it is clear case of remand. This Court is of the opinion that in the interest of all the concerned, directions are necessitated for early decision in the adjudication proceeding. Accordingly, the petitioner is directed to fully co-operate with the proceedings before the Adjudicating Authority. It is also directed that the Adjudicating Authority shall complete the proceedings as expeditiously as possible; without any further loss of time and preferably within a period of six months from the date of receipt of the copy of this order - Petition dismissed.
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