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Commissioner of Central Excise, Allahabad Versus M/s Jallan Concast Ltd, Gorakhpur

2015 (12) TMI 801 - CESTAT NEW DELHI

Refund claim - amount was deposited willingly and voluntarily during the course of investigation - refund was rejected as Refund application is premature - Held that:- Incidence of levy of Central Excise duty is manufacture or production of excisable goods. If any amount is collected or retained by the Central Excise authorities, which statutorily is not required to be levied, then on filing of formal application by the assessee, such amount has to be refunded. I find from the available records .....

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J) For the Appellant : Shri G R Singh, DR For the Respondent : Shri Mayank Garg, Adv ORDER Per S. K. Mohanty Revenue is in appeal against the impugned order dated 01.10.2013 passed by the Commissioner (Appeals), Customs and Central Excise, Allahabad, wherein refund claim for ₹ 50,00,000/- was allowed in favour of respondent by setting aside the adjudication order dated 22.08.2012. 2. The brief facts of the case are that the respondent herein is a manufacturer of MS ingots and MS Bars. On 1 .....

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inst the said order, the Commissioner (Appeals) has allowed the appeal in favour of the respondent. Hence, this present appeal before this Tribunal. 3. Shri G.R. Singh, the ld. DR appearing for Revenue submits that the refund application is premature as the disputed amount in question has been deposited willingly and voluntarily during the course of investigation against the expected liability; thus without waiting for conclusion of adjudication proceedings, claiming of refund is not maintainabl .....

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te appearing for the respondent reiterates the findings recorded in the impugned order and also relies on the judgment of Hon'ble Gujarat High Court delivered in the case of Sonali Dyeing and Printing Pvt. Ltd. vs. Union of India, reported in 2006(205) ELT 120 (Guj.). 5. I have heard the ld. Counsel for both the sides and perused the records. 6. Incidence of levy of Central Excise duty is manufacture or production of excisable goods. If any amount is collected or retained by the Central Exci .....

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e. In an identical set of facts, the Hon'ble Gujarat High Court in the case of Sonali Dyeing and Printing (supra) have allowed the refund claim, holding as under:- "9. In absence of any statutory provision on the basis of which any such recovery can be made, the action of the respondent authorities in collecting the cheques from the petitioner cannot be sustained in law. The position in law is well settled that liability to excise duty can arise on the production/manufacture of the exci .....

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