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TMI Blog2017 (3) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... d the said appeal preferred by the appellant, the appellantassessee has preferred the present appeal with the following proposed question of law: "A.Whether the learned CESTAT is correct in upholding the observations of the learned Commissioner (Appeals) which has resulted further ambiguity and a demand of interest by the department as well ? B.Whether the Revenue is correct in raising demand of interest under Section 11 AB on an amount already deposited with them by the appellant but under a different accounting head ? C.Whether the payment of duty under wrong accounting head can be considered as short payment of duty under Section 11A resulting in the invocation of Section 11AB of Central Excise Act, 1944 ? D.Whether the revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g head of Basic excise duty. That on further appeal filed by the appellant before the learned CESTAT, the learned CESTAT vide order dated 08.04.2015 / 09.04.2015, as such, agreed with the finding of the Commissioner (Appeals) that to regularize the payment under their respective accounting head, the appellant should claim the refund of excess paid Education Cess and SHE cess and the the appellant should deposit the same under the accounting head of Basic Excise Duty. Therefore, learned CESTAT as such did not interfere with the order of the Commissioner (Appeals) and rejected the said appeal. It appears that thereafter pursuant to Order in Original confirming upto learned CESTAT, the assessee deposited Rs. 12,21,639/vide challan no. 00390 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the assessee paid, there was short paid to the tune of Rs. 12,21,639/under the accounting head of Basic Excise Duty, the same is resulted in neutral activity with no loss to the Revenue in any manner and therefore, learned Tribunal ought to have regularized the payment of basic excise duty against the amount paid by the assessee of Rs. 12,21,639/, which was mistakenly paid under the accounting head of Eduction Cess and SHE Cess. It is further submitted by Shri Mishra, learned advocate for the appellant that even otherwise the learned Tribunal ought to have considered that any amount paid under the wrong head and resulted any loss to the revenue can be adjusted internally. 3.1. It is further submitted by Shri Mishra, learned advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit the present appeal. 4.0. Present appeal is vehemently opposed by Shri Jaymin Gandhi, learned advocate for the department. It is submitted that in the present case as such it is an admitted position that an amount of Rs. 12,21,639/towards basic excise duty was due and payable by the appellant and therefore, the learned Tribunal rightly confirmed the order of recovery of BED of Rs. 12,21,639/due and payable by the appellant. It is submitted that so far as amount of Rs. 12,21,639/paid by the appellant towards Education Cess and SHE Cess is concerned, as it was found that the said amount was not payable by the assessee, the learned Tribunal has rightly observed that for the aforesaid, it will be open for the assessee to file refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) confirmed by the learned Tribunal has been acted upon by the appellantassessee. The appellant had already submitted the appropriate application for refund of amount of Rs. 12,21,639/paid under the Education Cess and SHE Cess. That the appellant had also deposited the amount of Rs. 12,21,639/under head of BED. Under the circumstances and in the facts and circumstances, it cannot be said that the learned Tribunal has committed any error in confirming the order passed by the learned Commissioner (Appeals), by which, the appellant was directed to deposit the amount due and payable under the BED and was also permitted to file refund application of Rs. 12,21,639/paid under the head of Education Cess and SHE Cess. It is the case on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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