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Pre-Deposit U/s 35F

Service Tax - Started By: - CA.Mohammed Lakkadsha - Dated:- 13-6-2018 Last Replied Date:- 7-7-2018 - The Taxpayer had deposited 7.5% of Demand before preferring an appeal before Comm.Appeals. The Appeals was disposed in favour of the taxpayer and hence the pre-deposit amount was claimed back from department. The Department aggrieved by the order of the comm. appeals filed appeal before CESTAT which is pending as of date. Now the taxpayer has been served upon a SCN by the original adjudicating au .....

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tment cannot demand the refunded amount of pre-deposit. Mere filing of appeal by the department with CESTAT does vest powers to issue SCN. You can challenge such SCN in High Court without exhausting departmental channel now. Issuance of SCN is not justified at all. It is due to lack of knowledge. When I was in service, such like situation arose, the party approached the Chief Commissioner, the party got the refund which was being denied on the ground that the department was in appeal. It is a ma .....

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eply By MADAN RAHEJA - The Reply = The SCN issued to you is a protective demand in terms of para 26 of CBEC circular 1053/2/2017-CX dated 10-3-2017 and has to be kept in call book till decision of appeal filed by department. I think this para is ultravires of Section 11A and 35 F of Central Excise Act because pre-deposit is only a condition for filing appeal by assessee. Once an appeal is decided in favour of assessee, the condition automatically gets lapses entitling assessee refund of pre-depo .....

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sessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 23 (ii) Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944. Therefore, in all cases where the appellate authority has decided the matter i .....

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