TMI Blog2020 (1) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... for granting the stay, the same needs to be refunded without following the procedure of Section 11B - refund allowed - appeal allowed - decided in favor of appellant. - Excise Appeal No. 11748 of 2018 - A/11964/2019 - Dated:- 4-10-2019 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) Sh. K. I. Vyas (Advocate) for Appellant Sh. S.N. Gohil, Superintendent (AR) for Respondent ORDER PER: RAMESH NAIR The facts of the case is that the appellant has deposited duty during the appeal stage. Tribunal while passing the stay order considered the said deposit aa pre-deposit required under Section 35F, thereafter the demand case has been finally decided by this Tribunal and demand was dropped with consequential relief. The appellant filed a refund by way of a letter to the department. The said refund was rejected and the same was upheld by the Commissioner (Appeals) on the ground that the deposit made is payment of duty and not deposit under Section 35F, therefore, the refund should have been filed under Section 11B. Being aggrieved by the impugned order, the appellant filed the present appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I consider the same as sufficient for the purpose of pre-deposit required under Section 35F of Central Excise Act, 1944. The requirement of pre-deposit of balance amount from the appellant company and technical director is waived and stay against the recovery of the same during the pendency of the appeal is granted. 5. From the above stay order, it is clear that the full amount of duty and additional amount of 50,00/- deposited by the appellant was considered as sufficient for the purpose of pre-deposit required under Section 35F of Central Excise Act, 1944 and the balance amount was waived. With this clear findings in the stay order there is no doubt that the amount of duty and additional amount of ₹ 50,000/- paid by the appellant is under Section 35F. In case of deposit under Section 35F the Board has categorically clarified the mechanism for refund which is as under: 3. In order to attain uniformity and to regulate such refunds it is clarified that refund applications under Section 11B(1) of the Central Excise Act, 1944 or under Section 27(1) of the Customs Act, 1962 need not be insisted upon. A simple letter from the person who has made su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 35F is not a payment of Duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief. 3. In respect of such a deposit the doctrine of unjust enrichment will be inapplicable. In the circumstances, the petition succeeds. The impugned show cause notice, which is annexed at Exhibit-F to the petition, is quashed and the respondents are directed to forthwith refund the aforesaid amount of ₹ 14,07,410/- alongwith interest thereon at the rate of 15% p.a. from the date of the order of the Appellate Tribunal i.e. from 30th November, 1993 till payment. 4. Rule is made absolute in the aforestated terms. Respondents will pay the petitioners the cost of the petition. 7. The said judgment has been upheld by the Supreme Court as reported at UOI vs Suvidhe Ltd. 1997 (94) ELT A159 (SC). The similar issue has been considered by Jurisdictional High Court of Gujarat in case of JM Baxi Co. (Supra) wherein the Hon ble High Court has passed the following order. In this appeal under Section 35G of the Central Excise Act, 1944 (the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the refund claim of ₹ 5,79,971/- and ordered the sanctioned refund amount to be credited to the Consumer Welfare Fund as provided under sub-section (2) of Section 11B of the Act. Being aggrieved, the assessee preferred appeal before the Commissioner (Appeals) and succeeded. The revenue took the matter in appeal before the Tribunal, but did not succeed. 3. Mr. Y. N. Ravani, learned Senior Standing Counsel for the appellant submitted that both, the Tribunal, as well as the Commissioner (Appeals) had erred in treating the voluntary payment made by the assessee immediately after issuance of the order in original to avoid payment of interest as pre-deposit under Section 35F of the Act. It was urged that any amount paid voluntarily to avoid interest liability cannot be equated with pre-deposit under Section 35F of the Act and as such, the refund claimed by the assessee was subject to the test of unjust enrichment and as the burden of tax has been passed to other parties the said amount was required to be deposited in the Consumer Welfare Fund. It was, accordingly, submitted that the appeal deserves consideration and that the question as proposed or as may be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judicial forum under section 129E or section 131 of the Act which would fall within the ambit of pre-deposit under the said provision is fallacious and contrary to the provisions of the section itself and as such does not merit acceptance. 6. The court accordingly held that any amount deposited during the pendency of an appeal would be by way of pre-deposit under Section 129E of the Customs Act and has to be treated accordingly. The controversy in issue in the present appeal, therefore, stands concluded against the revenue, by the said decision of this Court. 7. In the circumstances, for the reasons stated in the judgment and order dated 7-10-2010 rendered in the case of Commissioner of Customs (Preventive) v. Ghaziabad Ship Breakers Ltd. in Tax Appeal No. 2042 of 2009, this appeal is also di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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