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TMI Blog2023 (9) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner and rejected Revenue's appeal. 2. The Respondent is registered with the Central Excise department and has been paying central excise duty. An order dated 27.3.2017 was passed by the Joint Commissioner demanding excise duty of Rs. 1,10,45,880/- from the respondent; however, he had not imposed any penalty. On appeal by the Revenue, the Commissioner (Appeals) had imposed penalty as well. Aggrieved, the respondent filed an appeal and this Tribunal, by Final Order No. 50360 of 2019 dated 5.03.2019, allowed the respondent's appeal with consequential benefits, if any. 3. Revenue was, therefore, required to, as per the Tribunal's Final Order, refund to the respondent the amount which it had deposited towards the demand. All that was requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities because the amount was deposited towards the alleged demand of excise duty which was finally set aside by this Tribunal. This submission is highly misplaced. Section 11B applies to refund of duty of excise paid and not to refund of any amount deposited. Therefore, the rebuttable legal presumption under section 11B that the burden of duty has been passed on by the assessee to its customer applies only to duties of excise and not to any amount whose refund is sought. It does not apply to any deposits which have to be refunded by the Revenue. It also does not apply to any amount paid towards fine, penalty, etc. 8. Any amount deposited towards a demand, fine or penalty either during investigation or thereafter while filing an appeal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect in the present case. The rebuttable legal presumption that the burden of duty has been passed on to the customers applies only to Section 11B and not to section 11D. If Revenue wants to invoke Section 11D, it is for the Revenue to prove that the respondent had collected an amount as representing duty of excise because there is no legal presumption under section 11D corresponding to section 11B. 11. To sum up, any amount which the respondent had deposited during investigation or at any time including at the time of filing the appeal was merely a deposit under section 35F and not duties of excise under section 11B. Revenue was obliged to refund the same under section 35F along with applicable interest under section 35FF and it had not d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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