TMI Blog2023 (8) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. From the circular No. 802/35/2004-CX dated 8 December, 2004, it was categorically clarified and reiterates their earlier circular that in case of refund of Pre-deposit the dead line for refunding, this pre-deposit is 3 months from the date of Tribunal s order, accordingly if the refund is not granted within 3 months from the date of Tribunal s order thereafter the department is bound to pay the interest to the claimant - As regard the revenue s contention that the appellant have not filed the proper refund claim - it is found that in various judgments it has been settled that as regard refund of pre-deposit, there is no requirement for filing a refund claim. The department must give the refund suo moto on the basis of Tribunal s order therefore merely because the appellant have not filed the proper refund claim within 3 months of the Tribunal order, department cannot be absolved from the liability of interest on the refund of pre-deposit. This issue has been considered in VOLTAS LIMITED VERSUS UNION OF INDIA [ 1998 (11) TMI 137 - HIGH COURT OF DELHI] where it was held that once the order of adjudication was set aside, the Tribunal could not have ordered the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, Tara Parakash Learned Deputy Commissioner (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. 3.1 He submits that after making pre-deposit for filing the appeal since the demand was not set aside and matter was remanded to the adjudicating Authority for passing de novo Order the refund of pre-deposit is payable only after setting aside the demand in the de novo adjudication process before that the refund of Pre-deposit is pre-matured, therefore, the lower authorities have rightly rejected the claim of interest made by the appellant. 4. We have carefully considered the submission made by both the sides and perused the record. We find that the limited issue in the present case to be considered by us is as to whether the refund of pre-deposit is payable within 3 months from the date of Tribunal s remand order or from the date of the de novo adjudication order. 4.1 We find that the pre-deposit for which the appellant has sought for the refund was paid specifically for entertaining the assessee s appeal by this tribunal, once the appeal was disposed of by way either setting aside the demand or by way of remand to the adjudicating authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by a superior Court. 5. Delay beyond this period of three months in such cases will be viewed adversely and appropriate disciplinary action will be initiated against the concerned defaulting officers. All concerned are requested to note that default will entail an interest liability, if such liability accrues by reason of any orders of the CESTAT/Court, such orders will have to be complied with and it may be recoverable from the concerned officers. 6. All Commissioners may advise implementation of these instructions and ensure their implementation through a suitable monitoring mechanism. Field formation may be suitably informed. Copies of the instructions issued may be endorsed to this office for information. 7. Commissioners under your jurisdiction should be advised that similar matters pending in the High Courts must be withdrawn and compliance reported. The Board has also decided to implement the CESTAT Orders already passed for payment of interest and the interest payable shall be paid forthwith. 8. This issues with the approval of Chairman/Member (L J), CBEC. 9. Kindly acknowledge receipt. 4.3 From the above circular, it was categorically clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting aside the order of adjudication. 8. In this case, the matter has been remanded inasmuch as the Tribunal was of the opinion that the adjudication was not satisfactory and it required a fresh application of mind. In our opinion, once the order of adjudication was set aside, the Tribunal could not have ordered the amount of pre-deposit to be retained awaiting the order of adjudication. There is no provision in the law requiring certain amount to be retained as a pre-deposit pending finalisation of the adjudication proceedings. As the amount is being withheld without any authority of law, it is liable to be refunded. 9. For the foregoing reasons, the petition is allowed. The impugned order of the Appellate Tribunal in so far as it directs the amount of pre-deposit not to be refunded and to be retained until a fresh order of adjudication is passed, is set aside. It is directed that the amount shall be refunded to the petitioner within a period of four weeks from today. No order as to costs. 4.4 In the case of AFCONS Infrastructure Ltd. (supra) the similar view was taken by the Andhra Pradesh High Court as under: 17.As noticed supra, on the authority of the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-deposited amount of Rs. 1.50 lacs has been refunded to the appellant, but the interest does not stand paid on the ground that the appellant is entitled for interest on refund amount when the decision comes in their favour in as much in the instant case, the matter was only remanded, it cannot be said that decision was in their favour. 2. I note that the matter was remanded by Tribunal vide order dated 27-7-97. The Astt. Commissioner of Central Excise rejected the refund claim of the deposited duty by his order dated 21-4-99, by observing that the party is not entitled for the refund till the case is finally decided in de novo proceedings. It is not understood as to why the Astt. Commissioner did not pass the order in de novo proceedings and instead of finalising the same, had chosen to reject the refund claim on the ground of non-finalisation of de novo proceedings. Be as it may be, Commissioner (Appeals) has allowed the refund claim, but, rejected the interest part on the ground that the issue has not attained finality. It is to be seen that when the matter is remanded by Tribunal, impugned order confirming demand of duty gets set aside and the effect as if no order confir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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