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2021 (6) TMI 511 - AT - Central ExciseDenial of Refund claim - denied on the ground that the claim is nowhere related to Section 35F - Section 11B of Central Excise Act 1944 - HELD THAT:- Once the appeal was admitted thereafter the appellant sought the refund of the amount recovered by the Deputy Commissioner without serving the Order-in-Appeal. It is really strange that after the decision of the Commissioner (Appeals) dated 30.12.2014, no recovery proceedings was initiated by the Department for 4 years and all of a sudden after more than 4 years, the recovery was sought by writing a letter and that too without supplying the copy of the Order-in-Appeal passed by the Commissioner (Appeals). Further, I find that the authorities below has wrongly considered the said refund under Section 11B of the Central Excise Act whereas the appellant has sought the refund on the ground that once he has filed the appeal before the Tribunal on payment of 10% duty then the recovery is automatically stayed and the Department cannot retain the amount forcibly recovered from the bank account of the appellant during the pendency of the appeal before the Tribunal. Since the appeal of the appellant is pending and during the pendency of the said appeal, the Department cannot withhold the amount recovered from the appellant without serving the copy of the Order-in-Appeal. The retention of the money recovered from his bank account is without authority of law and is hit by Article 265 of the Constitution of India read with Section 35F of the Central Excise Act 1944. The impugned order rejecting the refund of the amount recovered from the bank account of the appellant is not sustainable in law more so when the appeal of the appellant is already pending for disposal before the CESTAT, Bangalore - Appeal allowed - decided in favor of appellant.
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