2015 (1) TMI 122 - AT - Central Excise

Refund claim - Amount deposited during the course of investigation - Authorities rejected claim as premature - Held that - In the case of Nelco Ltd. (2001 (1) TMI 102 - HIGH COURT OF JUDICATURE AT BOMBAY), the Hon ble High Court of Bombay has held that in case of remand matter, Revenue is not entitled to hold on to the amount deposited by the assessee during the course of investigation as pre-deposit. The said view has been affirmed by the Hon ble Apex Court. Therefore, I hold that the refund claim filed by the appellant is not premature and lower authorities is required to refund the amount of pre-deposit made by the appellant immediately. In these circumstances, I set aside the impugned order - Decided in favour of assessee.

Summary

Issues:
Refund claim rejection as premature.

Analysis:
The appellant appealed against the order rejecting their refund claim as premature. The case involved discrepancies found during an investigation in the appellant's factory, leading to a duty demand and penalty imposition by the Adjudicating Authority. The Tribunal remanded the matter for de novo adjudication in a previous order. Subsequently, the appellant filed a refund claim for the amount deposited during the investigation, arguing it did not form part of the duty paid. Both lower authorities rejected the claim citing the pending adjudication. The appellant contended that the amount deposited should be considered a pre-deposit, citing a High Court case and an Apex Court decision supporting their position.

The appellant's counsel argued that the amount deposited during the investigation should be treated as a pre-deposit, as acknowledged by the Tribunal in a previous stay application. They relied on a High Court ruling and an Apex Court decision to support their claim for a refund. On the contrary, the respondent's representative reiterated the findings in the impugned order, opposing the refund claim.

After considering both sides' submissions, the Member (J) referred to the Nelco Ltd. case where the High Court held that in remand matters, the Revenue cannot withhold amounts deposited during investigation as pre-deposit. This view was affirmed by the Apex Court. Consequently, the Member (J) concluded that the refund claim was not premature, directing the lower authorities to refund the pre-deposit made by the appellant promptly. The impugned order was set aside, and the appeal was allowed with consequential relief. The Adjudicating Authority was instructed to implement the order within 30 days of communication.