TMI Blog2022 (6) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... h order before the Commissioner of Central Excise Customs (Appeals), Pune. There was a noting in it that such payment as full settlement of the amount demanded was without prejudice to the appeal to be filed. This being the facts and evidence on record, there is no second opinion that can emerge that such payment made by the Appellant towards discharge of duty confirmed alongwith interest and penalty was in the form of pre-deposit so as to acquire right of appeal and therefore the Circular of the CBEC Board referred by the Appellant namely Circular Nos. 1053/2/2017-CX, 984/8/2014-CX, 275/37/2k-CX.8A would clearly apply wherein it was stipulated that a simple application would be sufficient for the purpose of processing the refund and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom M/s Maruti, and also on handling charges, on which VAT was already paid by the Appellant. Through an adjudication process in the Order-in-Original such Service Tax demand to the tune of Rs.11,11,997/- alongwith interest under Section 75 and equal penalty under Section 78 of the Finance Act, 1994 was confirmed. Appellant made the payment in compliance to Section 35F and preferred appeal before the Commissioner (Appeals) but that yielded no fruitful result. Appellant knocked at the door of the CESTAT and got the desired relief vide this Tribunal s order dated 26.08.2015 after which it sought for refund of the amount paid in compliance to Order-in-Original as the then provision contained in Section 35F of the Central Excise Act, equally ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 21.08.2009 informing about such Service Tax payment alongwith interest and penalty and showing its intention to file an appeal before the Commissioner of Central Excise Customs (Appeals), Pune and such payment made under protest in compliance to the statutory requirement, so as to acquire right of appeal, can never be refused on the ground that the same is hit by the doctrine of unjust enrichment. Further, placing reliance on the judgement passed by the Hon'ble Bombay High Court in the case of Commissioner of Central Excise, Pune-I Vs. Sandvik Asia Ltd. [2015 (323) ELT 431 (Bom.)], he strongly contended that posting the amount deposited by the Appellant in its Profit Loss Account as expenditure would be of no consequence since sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2009. First paragraph of Section 35F reads: Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. (Underlined to emphasise) 6. The above provision would clearly indicate that for the purpose of filing an appeal, confirmed duty demand in the order to be appealed against alongwith interest and penalty are to be deposited with the adjudicating authority. Accordingly, letter under refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Respondent-Department that when the amount is shown in the books of account as expenditure, if would be presumed to have been passed indirectly to another person is without any basis, since no such accounting procedure has confirmed such an erroneous logic. It is surprising that the Additional Commissioner in his Order-in-Original dated 15.12.2017 had put-forth two conditionalities as a requirement for establishment of no unjust enrichment (para 14 of this order) but the same is without any authoritative support and appears to have been designed in conformity to his erroneous understanding, despite the fact that Hon'ble Bombay High Court in Commissioner of Central Excise, Pune-I Vs. Sandvik Asia Ltd., cited supra had made the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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