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TMI Blog2024 (11) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... equential benefit, if any. 2. The appellant is engaged in service of "Clearing and Forwarding" (C&F). A dispute had arisen regarding the inclusion of certain reimbursement expenses such as freight, stationery, printing charges, telephone charges, asset hire, courier, insurance and other taxes while providing Clearing and Forwarding agency services. Show cause notice dated 22.10.2007 was issued raising a demand of Rs.6,95,965/- and education cess amounting to Rs.7,951/-, which was confirmed by the order-in-original dated 30.03.2009 and was thereafter re-affirmed vide order-in-appeal dated 10.12.2009. 3. The appellant filed the appeal before the Tribunal along with application for stay of the statutory requirement of pre-deposit, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie case, in view of the decision of the Supreme Court in Inter Continental referred above. The application is disposed of accordingly." 4. The appeal was finally disposed of vide Final Order dated 01.05.2019, whereby the demand towards re-imbursement expenses was held to be un-sustainable in view of the decision of the Supreme Court in Union of India Vs. Intercontinental Consultant and Technocrats Pvt. Ltd. 2018 (10)GSTL 401 (SC). The appeal was, accordingly allowed with consequential benefits. 5. In terms of the aforesaid final order of the Tribunal, which remained un-challenged by the Revenue, the appellant made an application for refund dated 04.09.2020 claiming refund of Rs.70,400/- as deposited vide challan no.00213 dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... backdrop of the circumstances of the case, it was directed that the amount of 10%, which the appellant had deposited on 16.10.2018, be considered as sufficient towards the requirement of pre-deposit as the issue on merits is prima facie in favour of the appellant in view of the decision of the Supreme Court in the case of Union of India Vs. Intercontinental Consultant and Technocrats Pvt. Ltd. (supra). Thereafter when the final order was passed, the entire demand was held to be unsustainable. The amount deposited by the appellant was ipso facto pre-deposit and was liable to be refunded along with interest in view of the same having been settled in catena of decisions. 7. The sole ground, on which the Authorities below have held against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d position is no longer res integra and stands duly settled in light of the judgement of the court in MRF Ltd. Vs. Commissioner of Trade and Taxes [2019] 66 GSTR 313 (Delhi); [2018) SCC Online Del 10624." .......... "25. It was further pointed out that the principles laid down in MRF Ltd. were again reiterated in Rakesh Kumar Garg v. Deputy Commissioner of Central Excise, Division-I* where the court had held as under : "3. The two-fold submissions have been made on behalf of the petitioners. Firstly, that the amounts paid as pre-deposit (before CESTAT) and pursuant to the directions of this court, while pursuing the appeals under section 35G, did not bear the character of 'tax' and consequently, when relief was finally granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018), this very Division Bench had taken a similar view-in the context of pre-deposits made under the Delhi VAT Act. 6. In view of the above discussion, the petitioners' contention that they are entitled to interest from the date of the final order of the CESTAT, is justified and warranted. As to the second submission made with respect to the invalidity of section 35FF on account of its prospective nature, the court recollects that the provisions of law ought not to be read in a manner so as to invalidate them. In view of the interpretation preferred by the above judgment, the alleged unconstitutionality no longer subsists." After quoting the decision in extenso, the High Court directed to release the refund amount with interest pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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