TMI Blog2018 (2) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice was required to be issued for the appropriation of the amount already paid by the appellant as duty - As no SCN has been issued, therefore, the Revenue cannot retain the said amount as duty with them without any adjudication. The refund claim filed by the appellant cannot be rejected - appeal allowed - decided in favor of appellant. - E/26863/2013-SM - 22637 / 2017 - Dated:- 26-10-2017 - SHRI ASHOK JINDAL, JUDICIAL MEMBER Shri G. Shivadass, Advocate, For the Appellant Smt Kavitha Poduwal, AR, For the Respondent Per : ASHOK JINDAL The appellant is in appeal against the impugned order where their refund claim has been rejected by the authorities below on the premise that as appellant has paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. The refund claims were rejected by the authorities below on the premise that the appellant has paid duty on their own calculation and the refund claim cannot be granted to them. Aggrieved from the said order, the appellant is before me. 3. Learned counsel for the appellant submits that duty can be paid by three modes: (a) At the time of clearance of goods (b) in terms of Section 11A of the Central Excise Act by issuance of the show-cause notice and (c) as per the provisions of Section 11A(2B) of the Act wherein on detection, the appellant assessee pays differential duty along with interest, there is no requirement to issue show-cause notice. 3.1. It is his contention that it is not a case of payment of duty at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeated here again for the sake of brevity. 7. Admittedly in this case no show-cause notice has been issued to the appellant under Section 11A of the Act. 8. The only dispute with regard to this appeal is whether Section 11A(2B) had been applied or not. 9. For the sake of convenience provisions of Section 11A(2B) are extracted here: ((2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty 1 [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant did not comply with the provisions of Section 11A(2B) of the Act. In that circumstances, without issuance of show-cause notice under Section 11A of the Act, duty paid by the appellant at the time of audit objection cannot be appropriate. Therefore, the said amount shall remain with the Department as Revenue deposit. The same view was taken by this Tribunal in the case of Parle Agro Pvt. Ltd. (supra) wherein this Tribunal observed as under: 6. Having considered the rival contentions, we find that as held by Hon'ble of Punjab and Haryana High Court and as earlier held by this Tribunal the amounts, which are deposited during the pendency of investigation and proceedings, if the same are not adjudged as duty fine or penalty then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The payment was made during the period 6-12-1995 to 22-10-1997. 26. The language and contents of the letter dated 5-10-1995, as reproduced hereinabove, leave nothing to doubt or guess that the assessee had pleaded, in unequivocal terms, with the department that duty was not payable on the additions made to the assessable value of goods towards transportation, insurance and handling/delivery charges. The contents of the letter dated 5-12-1995 further make it clear that despite the assessee having lodged the protest by the letter dated 5-10-1995, the department had been insisting for making such payment and hence the assessee put on record emphatic denial of the department s propositions; and the statement had been even to the extent tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appears that the addition was sought to be insisted upon by the department at the later stage and hence came the protest from the assessee on 5-10-1995 which was followed by the communication dated 5-12-1995. When the department still insisted, the assessee made the payment. It is not in dispute that ultimately, the objections of the assessee were sustained. 32. In the totality of circumstances, it is very difficult to find as to how the requirements of sub-rule (4) of Rule 233B could have been fulfilled in respect of the clearances which had already been made before the department compelled the assessee to make payment of duty i.e., at least for the clearance made between 1-3-1994 to 5-12-1995. In the present case, in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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