TMI Blog2022 (6) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly availed. No appeal was filed by the Department against the said order. The issue is otherwise no more res integra. Hon ble Apex Court also in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [ 2006 (1) TMI 55 - SUPREME COURT] has held that any amount deposited during investigation pending litigation is ipso facto an amount of pre-deposit and even interest is payable on such amount to the assessee being successful in appeal from the date of deposit till the date of refund. Rejection on the ground of unjust enrichment - HELD THAT:- Once it has already been held that the amount in question was an amount of pre-deposit and the amount was not the liability in the form of duty/tax to be paid by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. Meanwhile, the appellant had deposited the amount of Rs.274997/- vide the challan dated 17.11.2015. During the initial stage of said appeal vide an Interim Order dated 12.01.2016, the said amount was held to be an amount as deposited under section 35 F of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 (the amount of pre-deposit). The said appeal was finally allowed vide Final Order No.52537/2018 dated 18.07.2018. Pursuant to said order that the appellant filed an application dated 12.03.2019 seeking refund of the aforesaid amount of pre-deposit. The request of the said application has been rejected initially vide Order-in-Original No. 262 dated 19.06.2020. Appeal thereof has been rejected by Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the rival contentions and perusing the record, it is observed that the refund claim of the appellant has been rejected on two counts. (i) That the amount was actually deposited on the behest of recovery notice of the Department. (ii) In terms of section 12 B of Central Excise Act a presumption of law exists about every person who has paid the duty on excise on any goods shall be deemed to have passed on the full incidents of such duty to the buyers of such goods. 6. To appreciate these findings, the correctness thereof, following are few admitted facts to be taken into consideration:- (1) Vide the order of this Tribunal the amount, the refund whereof was sought, has been held to be an amount paid in compliance with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of refund of such amount. Provided that the amount deposited under section 35F, prior to the commencement of the Finance (No. 2) Act, 2014, shall continue to be governed by the provisions of Section 35FF as it stood before the commencement of the said Act. 8. In addition, the Circulars as relied upon by the appellant are Department s own document. With respect to refund of pre-deposit, the Department is also conscious as follows:- 26. Refund of pre-deposits:-(i) Where the appeal is decided in favour of the party/assessee, 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty. As already held by this Tribunal during the first round of litigation vide Final Order No.52537/2018 dated 18.07.2018 that the appellant was not liable to pay the amount for which the reversal was proposed vide the earlier Show Cause Notice. The amount was not the amount of duty. It has been held to be an amount of pre-deposit vide Order dated 12th January, 2016. Accordingly, I am of the opinion that section 12B has wrongly been invoked by Commissioner (Appeals). He is also observed to have failed to appreciate para 26 (ii) of Circular dated 10th March, 2017 which reads as follows:- 26. Refund of pre-deposits:-(i) Where the appeal is decided in favour of the party/assessee, he shall be entitled to refund of the amount deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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