TMI Blog2010 (12) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944, has held that any amount deposited during the pendency of an appeal would be by way of pre-deposit under Section 129E of the Customs Act and has to be treated accordingly. The controversy in issue in the present appeal, therefore, stands concluded against the revenue, by the said decision of this Court. - Tax Appeal No. 2017 of 2009, - - - Dated:- 15-12-2010 - Harsha Devani and H.B. Antani, JJ. Shri Y.N. Ravani, SSC, for the Appellant. [Order per : Harsha Devani, J. (Oral)]. In this appeal under Section 35G of the Central Excise Act, 1944 (the Act), the appellant, Commissioner of Central Excise Customs, Rajkot has challenged the order dated 24-4-2009 made by the Customs, Excise Service Tax Appellate Tribunal (the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ravel agent which had no nexus with the out put service, and also waived the penalty. The order-in-appeal was accepted by the Department. On the basis of the decision of the Commissioner (Appeals), the assessee filed three refund claims before the Assistant Commissioner, Service Tax Division, Rajkot (hereinafter referred to as the lower authority ) who called upon the assessee to produce documentary evidence establishing that the amount of service tax in relation to which the refund was claimed was collected from, or paid by it, and the incidence of such service had not been passed on by it to any other person. Vide order dated 1-2-2008, the lower authority sanctioned the refund claim of Rs. 5,79,971/- and ordered the sanctioned refund amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is as to whether or not the amount paid voluntarily after the order of the adjudicating authority, pending the appeal before the appellate authority is to be treated to be a deposit made under Section 35F of the Act. 5. The controversy involved in the present appeal is no longer res integra inasmuch as, this Court in the case of Commissioner of Customs (Preventive) v. Ghaziabad Ship Breakers Ltd. vide judgment and order dated 7-10-2010 rendered in Tax Appeal No. 2042 of 2009 [2010 (259) E.L.T. 522 (Guj.)], in the context of the provisions of Section 129E of the Customs Act, 1962 which are in pari materia with the provisions of Section 35F of the Central Excise Act, 1944, has held thus : On a plain reading of section 129E of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made pursuant to any order of any appellate authority or judicial forum under section 129E or section 131 of the Act which would fall within the ambit of pre-deposit under the said provision is fallacious and contrary to the provisions of the section itself and as such does not merit acceptance. 6. The court accordingly held that any amount deposited during the pendency of an appeal would be by way of pre-deposit under Section 129E of the Customs Act and has to be treated accordingly. The controversy in issue in the present appeal, therefore, stands concluded against the revenue, by the said decision of this Court. 7. In the circumstances, for the reasons stated in the judgment and order dated 7-10-2010 rendered in the case of Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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