TMI Blog2005 (8) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... iled an appeal against the order of adjudication, along with stay application. When the stay application came up for hearing before the Commissioner (Appeals), it was submitted that an amount of over Rs. 1.05 crores already remained realised through the encashment of the bank guarantee and Commissioner (Appeals) waived the requirement for further pre-deposit and heard the appeal. The appeal was subsequently allowed under an order dated 28-9-2000 (issued on 3-10-2000). The appellant filed refund application on 8-12-2000 claiming the return of the amount realised in terms of the bank guarantee. The Revenue filed an appeal before this Tribunal against the order of the Commissioner (Appeals), along with stay application. The stay application wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular issued by the Revenue. A copy of that circular, bearing No. 802/35/2004-CX, dated 8-12-2004 was also annexed to the judgment. It is the submission of the learned Counsel that the circular specifically has held that in respect of final orders, amounts pre-deposited must be returned within three months from the date of the order passed by the appellate authority, failing which interest will be payable. Reliance has specifically been placed on 3 and 4 paras of the circular. We reproduce these paras :- "3. The Board has noted the observations of the Hon'ble Supreme Court in its order dated 21-9-2004 and has decided that pre-deposits shall be returned within a period of three months of the disposal of the appeals in the assessee's fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Voltas Ltd. v. Union of India reported in 2005 (179) E.L.T. 29 (Bom.) and the decision of this Tribunal in the case of Pace Marketing Specialities Ltd. v. CCE, Ghaziabad reported as 2003 (157) E.L.T. 36 in support of his contention. The learned SDR also has a contention that realisation of amounts in terms of encashed bank guarantee is not payment of duty so as to attract interest. In support of this contention he has relied on the judgment of the Apex Court in the case of Oswal Agro Mills Limited - 1994 (70) E.L.T. 48 (S.C.). 6. There had been many decisions prior to the judgment of the Hon'ble Supreme Court in the case of ITC Ltd., but that judgments was rendered upon the agreement of the revenue to issue the above mentioned circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that such a view would not be correct and just. The circular of the Board clearly covers payments made in terms of Section 129E of the Customs Act and Section 35F of the Central Excise Act. Both these sections stipulate that an appellant has to deposit, before filing the appeal, the duty and penalty imposed under the order challenged. The proviso to these Sections provide that the appellate authorities, be it Commissioner (Appeals) or CESTAT, can grant waiver of the requirement of the pre-deposit. Therefore, irrespective of whether the amount had been fully deposited by appellant before filing the appeal or whether the deposit was in terms of a order on a stay application, the amount remains pre-deposit under Section 129E or 35F and all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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