TMI Blog2021 (12) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ay ₹ 66 Lakhs. ₹ 44 Lakhs whereof were required as an amount of pre-deposit till the appeal of the appellant was not decided by the Tribunal. Once the Tribunal s order setting aside the demand had attained finality, the amount equivalent to the 10% of the impugned duty was calculated as ₹ 44 Lakhs, hence, was refunded. However, ₹ 21 Lakhs is also part of such money of appellant for which he was never liable towards the Department. Accordingly, Department is not entitled to retain the same or to become unjustly rich by retaining the money of the assessee. Once the proposed duty demand against the appellants stands set aside, the entire basis of deposit as was made by the appellant fails to survive. Department cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the alleged amount of duty which includes said ₹ 21 Lakh also. Accordingly, the refund claim of ₹ 21 Lakhs has wrongly been rejected by the Adjudicating Authority below. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50502 of 2021 [SM] - FINAL ORDER No. 52056/2021 - Dated:- 3-12-2021 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Mr. N.K. Gupta, Advocate for the Appellant Ms. Tamanna Alam, Authorised Representative for the Respondent ORDER The order of Commissioner (Appeals) bearing No.0125/2020 dated 29.09.2020 has been assailed vide which the rejection of refund claim of the appellant for an amount of ₹ 21 Lakhs has been upheld. The facts in brief as follows:- The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal thereof has been rejected vide the order under challenge. Being still aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. N.K. Gupta, Advocate for the appellant and Ms. Tamanna Alam, Authorized Representative. 3. Learned Counsel for the appellant submitted that the Adjudicating Authority below has wrongly considered the amount of ₹ 15 Lakhs out of claimed ₹ 21 Lakhs as a payment of duty while rejecting the same. Similarly, the rejection of balance ₹ 6 Lakhs has also been rejected on a wrong ground of not producing any proof that the said amount has been debited/paid in the pre-GST Regime. Learned Counsel has submitted that balance-sheet/ excise return as was furnished post new GST Act, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s out of ₹ 21 Lakhs claimed has solely relied upon para 3 of Circular No.984/08/2014 dated 16.09.2014 wherein it has been clarified by the Board that amount deposited in excess of the mandatory pre-deposit shall not be treated as deposit under section 35 F of the Central Excise Act. The amount of ₹ 66 Lakhs (including impugned ₹ 21 Lakhs) was the amount paid during investigation itself much prior the issuance of the Show Cause Notices demanding duty from the appellant. The impugned refund cannot be called as refund of amount of pre-deposit nor has been claimed so by the appellant. The amount to the extent of pre-deposit out of aforesaid ₹ 66 Lakhs was ₹ 44 Lakhs which has already been refunded in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odian but once the demand stands set aside, Revenue cannot retain the amount of deposit made by the assessee towards the proposal of the said duty demand. Accordingly, the amount of ₹ 21 Lakhs is an amount of deposit made under protest it cannot be called as duty. Question of applicability of section 11B of Central Excise Act does not at all arise. The findings of Commissioner (Appeals) to this effect are, therefore, held to be wrong. 7. Coming to the rejection to the extent of ₹ 6 Lakhs on the ground of no proof for said amount to be debited from the credit ledger, it is observed from the record that the said amount of ₹ 6 Lakhs is depicted in ER-1 for the period June, 2017 as a closing balance. The GST regime was in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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