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TMI Blog2024 (11) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... the above order, the appellant filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 05.08.2019 partially allowed the appeal and remanded the same for de novo adjudication for verification of records. Based on the above order, the Assistant Commissioner, Dharwad Division vide order dated 18.03.2020/20.03.2020 confirmed the demand of Rs.4,83,764/- and dropped the demand of service tax of Rs.12,99,411/- already paid by the service recipient. Based on the above order, the appellant paid the service tax amount demanded along with interest and the 25% penalty. Simultaneously, the appellant filed an application dated 07.05.2021/15.06.2021 requesting return of the entire tax amount treating it as pre-deposit amount along with interest under Section 35FF of the Central Excise Act, 1944. The original authority vide Order dated 26.10.2021 held that the Circular No.984/08/2014-CX dated 16th September 2014 deals with only pre-deposit amounts made before the appellate authorities and any other amount has to be refunded only by following the provisions of Section 11B of the Central Excise Act, 1944. Accordingly, the original authority refunded amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of cases may be called, for the sake of convenience, as illegal levy. In this class of cases, the claim for refund arises under the provisions of the Act. In other words, these are situations contemplated by, and provided for by, the Act and the Rules. 19. The above distinction is not only accepted in all jurisdictions but is also not disputed before us. 68. ............................. It must also be remembered that Central Excises and Salt Act is a special enactment creating new and special obligations and rights, which at the same time prescribes the procedure for levy, assessment, collection, refund and all other incidental and ancillary provisions. As pointed out in the Statement of Objects and Reasons appended to the Bill which became the Act, the Act along with the Rules was intended to "form a complete central excise code". The idea was "to consolidate in a single enactment all the laws relating to central duties of excise". The Act is a self-contained enactment. It contains provisions for collecting the taxes which are due according to law but have not been collected and also for refunding the taxes which have been collected contrary to law, viz., Sections 11A and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove observations of the Hon'ble Supreme Court, it was submitted that any refund of tax amount has to be dealt in accordance with the provisions of Section 11B of the Central Excise Act, 1944 and the limitation period under Section 11B of the Central Excise Act, 1944 is made applicable to Service Tax by virtue of Section 83 of the Finance Act 1994. Hence, the above refund clearly falls under Section 11B and the Commissioner (Appeals) has rightly rejected the refund claimed by the appellant. 5. Heard both sides. The period of dispute is from April 2013 to June 2017. The appellant on confirmation of demand of service tax vide Order-in-Original dated 20.09.2018 paid entire service tax demand of Rs. 16,97,430/- which was appropriated. On appeal, the Commissioner (Appeals) based on the appellants plea that the service receiver had already paid an amount of Rs. 13,26,197/-, the Commissioner (Appeals) remanded the matter to the Original Authority for verification and confirmation of the same. The Original Authority passed de novo order dated 20.03.2020 after verification of the records, confirmed duty amount of only Rs.4,83,764/- and dropped demand of Rs.12,99,411/- already paid by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable unless such order is stayed by a competent Appellate Authority. 5.4 In the event of a remand, refund of the pre-deposit shall be payable along with interest. 5.5 In case of partial remand where a portion of the duty is confirmed, it may be ensured that the duty due to the Government on the portion of order in favour of the revenue is collected by adjusting the deposited amount along with interest. 5.6 It is reiterated that refund of pre-deposit made should not be withheld on the ground that Department is proposing to file an appeal or has filed an appeal against the order granting relief to the party. Jurisdictional Commissioner should ensure that refund of deposit made for hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the refunded amount be issued under Section 11A by not lower than Assistant/Deputy Commissioner of Central Excise as per new monetary limits for adjudication of cases by the Central Excise officers and transferred to the call-book. (iv) In the event of a remand, refund of the pre-deposit shall be payable along with interest. 5.1 As seen from the above Circulars, the amounts paid during audit or investigation can be considered as deposits for the purpose of pre-deposit before the appellate authorities, thus relieving the appellant from making any further 7.5%/10% pre-deposit in addition to the duty deposit already made. The Circular further observed that "Any shortfall from the amount stipulated under these sections shall have to be paid before filing of appeal before the appellate authority. As a corollary, amounts paid over and above the amounts stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, shall not be treated as deposit under the said sections". This clearly stipulates that the amount 7.5%/10% which is mandatory to be pre-deposited, only to that extent the amount paid by the appellant as duty amount during audit/inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant has filed a refund claim under Section 35FF of Central Excise Act, 1944 only on 07.05.2021 which has been received by the Revenue on 15.06.2021, therefore, the claim is barred by limitation as per the provisions of the Section 11B of the Central Excise Act, 1944. Hence, the Commissioner (Appeals) has rightly held that pre-deposit amount of 7.5% of Rs.16,97,430/- is only eligible as refund. 5.3 The other issue to be decided is whether notice is to be issued before rejecting any refund claim as claimed by the appellant. The Commissioner (Appeals) in the impugned order has held that since the appellant was given a personal hearing and an opportunity to defend his case, there is no question of violation of principles of natural justice by not issuing a show-cause notice. The appellant has stated that the claim filed by them was for refund of the entire service tax amount paid by them considering it as pre-deposit under Section 35FF of the Central Excise Act, 1944. If the Commissioner (Appeals) had to reject on the ground that the claim was not filed within the time limit as per the provisions of the Section 11B, show-cause notice should have been issued and relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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