TMI Blog2022 (11) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... he department for which the Department of Revenue had not authority to retain. The amount payable by the declarant has to be calculated in terms of Section 124(2) i.e. by making a deduction of any amount deposited at any stage prior. From the entire discussion, it becomes abundantly clear that amount in question of Rs.17,38,023/- was to be deducted till the stage of SVLDRS Form No. 2 but was not deducted even at the stage of SVLDRS Form No. 3. Hence, the said amount cannot be covered under proviso to Section 124(2). Thus the said provision is held to have wrongly been applied while rejecting the impugned refund. Similarly, any amount paid under section 130 of Finance Act, 2019 is the amount towards the tax dues as defined under section 123 of the Finance Act, 2019. Hence, it is held that same section 130 has also been wrongly invoked while rejecting the impugned refund. The amount in question is eligible for refund on merits as well as on account of limitation - Appeal allowed - decided in favor of appellant. - EXCISE APPEAL NO. 51698 OF 2022 - FINAL ORDER No. 51080/2022 - Dated:- 17-11-2022 - DR. RACHNA GUPTA, MEMBER(JUDICIAL) Shri B L Yadav, Consultant for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that the said amount was not considered as the duty liability of the appellant. However, department vide Show Cause notice No. 7477 dated 21.08.2020 has proposed the rejection of the said refund claim. The said proposal has initially been confirmed and the refund claim has been rejected by the Original Adjudicating Authority vide Order-in-Original No. 11/2020-21 dated 24.09.2020. The appeal thereof has been rejected vide Order-in-Appeal No. 146/2021 dated 22.12.2021. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Shri B L Yadav, learned Counsel for the Appellant and Shri Ishwar Charan, learned Authorised Representative for the Department. 4. Learned Counsel for the appellant submitted that refund claim has wrongly been held to be barred by time. Reliance has been placed on the decisions of Hon ble High Court of Punjab and Haryana in the case of Schlumberger Solutions Pvt. Ltd. reported as [2021 (12) TMI 184 (P H)] wherein it was held that where the whole amount has been paid as tax and not as tax, interest etc. the department would have allowed deductions of the whole amount and interest would have been waived. Learned Counsel also relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the admitted facts:- (i) An amount of Rs.6,51,66,787/- was proposed to be recovered from the appellant as his duty liability vide a show cause notice dated 4.9.2015. (ii) The appellant himself assessed his duty liability for Rs.75,09,207/- and deposited Rs.56,75,5000/- initially and later on deposited Rs.35,72,230/- (Rs.18,34,207 plus Rs.17,38,023/- as interest). (iii) The appellant moved an application before Settlement Commission which was rejected on 30.4.2019 and the matter was sent back to the Adjudicating Authority. (iv) Prior the matter could be taken up by the Adjudicating Authority, the appellant applied under SVLDR Scheme on 24.12.2019. (v) Form SVLDR-1 as issued against the duty amount of Rs.6,51,66,787/- after adjusting pre-deposit/ other deposit of duty of Rs.92,47,230/- already deposited by appellant indicated an amount as Rs.2,33,36,163.50 as estimated amount payable. (vi) In SVLDR Scheme Form No. 3 dated 19.3.2019 after deducting only Rs. 75,09,207/- out of total pre-deposit of Rs.92,47,230/- an amount of Rs.2,50,74,186/- was shown as estimated amount payable. It was specifically mentioned therein that amount of Rs. 17,38,023/- is not verified as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enshrined under Constitution of India itself Article 362 that no tax can be collected without validity of law. Since the appellant has paid the entire estimated amount payable amount of Rs.17,38,023/- becomes such a deposit with the department for which the Department of Revenue had not authority to retain. The Adjudicating Authority below have relied upon the proviso (B) to section 124(2), of Finance Act, 2019 which is as follows:- (B) Provided that if the amount of pre deposit or deposit already paid by the declarant exceeds the amount payable by the declarant, as indicated in the statement issued by the designated committee, the declarant shall not be entitled to any refund. 11. A bare perusal makes it clear that such an amount as is not required if deposited and amount is found in excess to the amount payable by the declarant, same shall not be refunded. The amount payable by the declarant has to be calculated in terms of Section 124(2) i.e. by making a deduction of any amount deposited at any stage prior. From the entire above discussion, it becomes abundantly clear that amount in question of Rs.17,38,023/- was to be deducted till the stage of SVLDRS Form No. 2 but wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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