TMI Blog2018 (6) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... - Appeal No. E/60331, 60364/2018 - Final Order No. 62448-62449 / 2018 - Dated:- 8-6-2018 - Hon ble Mr. Ashok Jindal, Member ( Judicial ) Shri. Pawan Phawa, Advocate- for the assessee Shri. V.Gupta, AR- for the revenue ORDER Per Ashok Jindal Both sides are in appeal against the impugned order. 2. The facts of the case are that the assessee is located in the state of Jammu Kashmir and availing benefit of exemption Notification 56/2002-CE dated 14.11.2002. As per the said notification, whatever duty is paid through PLA, the same is refundable to the assessee. In the case in hand, the assessee paid duty along with education cess and higher education cess and took self credit of the same which was initially allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pre deposit of the said amount was granted but same was not considered by the authorities below, therefore, the said amount cannot be appropriated. It is his contention that the final order of this Tribunal has passed in favour of the assesee itself, therefore, no demand is sustainable against the assessee, therefore, the amount is required to be refunded to the assessee along with interest. 4. On the other hand, the ld. AR in support of their appeal submitted that the assessee is not entitled to claim interest on refund of penalty. As there is no such provisions in Section 11B of the Central Excise Act, 1944 and took support of the decision of this Tribunal in the case of Ajay Exports reported in 2016 (335) ELT 150 (Tri. Mum.), Saran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ld. AR relied on the various decisions in cited hereinabove wherein this Tribunal has not considered the decision of the Hon ble Apex Court in the case of Madura Coats Ltd. (Supra). 10. Moreover, the Hon ble Gujarat High Court in the case of J.M. Baxi Co. (Supra) has examining the issue and observed as under: 4. The undisputed facts of the case are that the assessee had deposited the amount payable under the order made by the adjudicating authority voluntarily without there being any order of the appellate authority directing the assessee to deposit the amount as a precondition for hearing the appeal. The issue that arises for determination in the present appeal is as to whether or not the amount paid voluntarily after the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit is of duty or interest or penalty. The term pre-deposit is conveniently used to denote payment before entertaining the appeal. It is only a mode of payment prescribed by legislature with an intention to protect interest of Revenue. However, if the person desirous of preferring appeal seeks waiver of the pre-deposit on the ground of undue hardship as contemplated under sub-section (2) of section 129E, he is required to file an application seeking dispensation of such deposit, in which case he is required to make the pre-deposit in terms of the order that may be passed by the Commissioner (Appeals) or the Appellate Tribunal. Thus, the contention that it is only the payment made pursuant to any order of any appellate authority or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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