2017 (11) TMI 1706 - AT - Central Excise

Refund of pre-deposit - Board s Circular No. 275/37/2K-CX.8A dated 02.01.2002 - Held that - The pre-deposit will have to be refunded to the assessee-Appellants if the case is allowed in appeal - the adjudicating authority is directed to decide/pass the original order as per the directions of the Tribunal within a period of two months from the date of receipt of this order failing which the Department will have to make the refund to the assessee-Appellants, as per law - appeal disposed off.

Summary

Issues:
Refund claim rejection by Department after remand for fresh adjudication.

Analysis:
The appeal was filed against the rejection of a refund application by the Department after a remand for fresh adjudication. The Tribunal had previously set aside the original order and remanded the matter for providing an opportunity of cross-examination. Despite the assessee-Appellants making a pre-deposit of ?4.4 crores and furnishing a bank guarantee of ?19 lacs before the show cause notice issuance, the refund claim was rejected. The counsel for the assessee relied on the Gujarat High Court's decision in Anita Exports vs UOI and Circular No. 275/37/2K-CX.8A dated 02.01.2002, stating that the pre-deposit should be refunded if the case is allowed in appeal. A controversy arose regarding whether the amount was a pre-deposit or not.

The Tribunal directed the adjudicating authority to pass the original order within two months from the date of the order. Failure to do so would require the Department to refund the amount to the assessee-Appellants as per the law. The appeal was disposed of with these directions.