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2018 (2) TMI 893

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....investigation was conducted at the end of the supplier of inputs to the appellant i.e. M/s. Bosch Ltd. wherein it was alleged that they have undervalued the inputs supplied to the appellant, consequently, the appellant has undervalued their finished goods and not paid correct duty. On these premises, an audit objection was raised against the appellant for the period July 2008 to June 2009 to demand differential duty of 22.66 lakhs. Based on the audit objection, the appellant reversed the amount of Rs. 22,66,906/- (Rupees Twenty Two Lakhs Sixty Six Thousand Nine Hundred and Six only) in their cenvat credit account. The appellant informed to the Department on 14.09.2009 that they have reversed the said amount in their cenvat credit account bu....

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....(2B), they were required to pay duty along with interest and they have not paid the interest. Therefore, having not complied with the condition of Section 11A(2B) of the Act, without issuance of show-cause notice, duty cannot be appropriated or demanded from them. In that circumstances refund claim cannot be rejected. In support of his submissions, he relied on the decision of the Hon'ble Rajastan High Court in the case of Shree Shyam Filaments Vs. CCE, Jaipur - 2014 (303) E.L.T. 195 (Raj.) and also relied upon the decision of this Tribunal in the case of Parle Agro Pvt. Ltd. Vs. CCE, Noida - 2017-TIOL-1406-CESTAT-ALL. 4. On the other hand the learned AR opposed the contention of the learned counsel and submits that at the time of raising ....

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.... duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or ....

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....the same. The amount which has been adjudged is as per the authority of law and the amount which is in excess of the adjudged amount if retained that such retention of said amount shall be without authority of law and Article 365 of Constitution of India has not authorized Revenue to retain such amount. In the present case, the penalty was reduced to Rs. 10 lakh. Therefore, we allow Revenue to recover Rs. 10 lakh from Rs. 1.5 crore which was deposited by the appellant and direct the Original Authority to refund Rs. 8,36,185/- and Rs. 1,40,00,000/- and also pay the appropriate interest on the same. We do not pass any order in respect of bank guarantee since the matter was not subject matter of either the Order-in-Original or Order-in-Appeal ....

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....-1995 could only be regarded as the letters of protest. The contention urged on behalf of the department is that for being a protest as envisaged by Rule 233B, the assessee ought to have followed the procedure prescribed by the Rules and in the present case, such a procedure has not been followed. This contention, in our view, is of no avail for the department. In the first place, this contention remains rather a matter of form than of substance. Secondly, the requirements of Rule 233B cannot be construed in a narrow or hyper-technical manner and essentially, what is required is that substantively, there has to be a protest in writing. Thirdly, as shall be seen hereafter, all the requirements of Rule 233B cannot even be employed in the fact....