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2021 (2) TMI 844 - HC - Central ExciseSeeking for restitution of amount deposited by petitioner - petitioner had voluntarily deposited the amount only with a view to avoiding the amount of interest, penalty etc. - HELD THAT - There is no quarrel to the proposition that if any payment is made by the assessee, as a condition precedent for hearing an appeal, the same does not bear the character of duty, but has the character only of security deposit and the same is required to be refunded the day appeal is disposed of by the authorities inasmuch as, the parties are put back to the situation of a show cause notice against the assessee being adjudicated by the authority. Therefore, the deposit made during the course of investigation and before the issuance of the show-cause notice or for hearing of the appeal, the assessee is entitled for the refund in the event of the appeal being allowed and remanded to the Adjudicating Authority for de novo consideration. It is well settled proposition of law that there is always peril in treating words of a judgment as though they are words in a legislative enactment; it is to be remembered that judicial pronouncements are made only stating all facts of a particular case. It has been settled in catena of decisions of the Apex Court that circumstantial flexibility, one additional or different fact may make a difference between conclusion in two cases. Disposal of cases by merely placing reliance on a decision is not desirable. Precedent should be followed only so far as it marks path of justice - The Apex Court, in the case of Haryana Financial Corporation and Another vs. Jagdamba Oil Mills 2002 (1) TMI 1266 - SUPREME COURT has held that placing reliance blindly on the judgment is not proper. Factual situation between the decided cases and the case at hand are required to be gone into. M/s. Balaji Enterprises appears to have exported 221 consignments of the goods manufactured by it during November, 2003 to September, 2004 and has claimed rebate of excise duties paid by it on the exported goods. The Central Excise authorities, after scrutinizing the rebate claims, sanctioned the same as well as paid the rebate for all the 221 exported consignments. Regular orders, sanctioning the rebate to the tune of ₹ 7,06,66,186/- (Rupees seven crore six lac sixty six thousand one hundred eighty six only) have been passed by the officer concerned having jurisdiction. This led to the inquiries against M/s. Balaji Enterprises on the basis that rebate claims were erroneously paid to it inasmuch as, it is alleged that M/s. Balaji Enterprises had not received any duty paid inputs and materials from its suppliers, including the petitioner. The said inquiry/investigation led to issuance of the show cause notice dated 15.2.2007 by Directorate General of Central Excise Intelligence (DGCEI) to M/s. Balaji Enterprises as well as others, including the petitioner, inter alia, proposing imposition of penalty. The show cause notice dated 5.2.2007 was issued by the DGCEI to M/s. Balaji Enterprises and other ten noticees, including the petitioner, which was adjudicated by the Adjudicating Authority and M/s. Balaji Enterprises, M/s. MSN Enterprises and M/s. Krishna Impex were jointly and severally held liable. This Court is conscious of the fact that vide order dated 10.7.2019, the appeal filed by the petitioner has been allowed quashing the order dated 30.3.2011 qua the petitioner and two others, however, the fact remains that the order dated 30.3.2011 of the Adjudicating Authority cannot be said to have been quashed in its entirety. Owing to the failure on the part of M/s. Balaji Enterprises in depositing the amount and consequent rejection of appeal, the order dated 30.3.2011 passed by the Adjudicating Authority, attained finality so far as M/s. Balaji Enterprises and M/s. Krishna Impex are concerned. Further, as emerges from the order, common findings have been recorded by the Adjudicating Authority of holding, M/s. Balaji Enterprises, M/s. MSN Enterprises and Krishna Impex, jointly and severally liable for taking the benefit of rebate. Therefore, it cannot be said that it is clear case of remand. This Court is of the opinion that in the interest of all the concerned, directions are necessitated for early decision in the adjudication proceeding. Accordingly, the petitioner is directed to fully co-operate with the proceedings before the Adjudicating Authority. It is also directed that the Adjudicating Authority shall complete the proceedings as expeditiously as possible; without any further loss of time and preferably within a period of six months from the date of receipt of the copy of this order - Petition dismissed.
Issues Involved:
1. Refund of ?50,00,000/- deposited under protest. 2. Nature of the deposit: pre-deposit or voluntary. 3. Applicability of Section 35F of the Central Excise Act, 1944. 4. Jurisdiction and authority of Revenue to retain the deposit. 5. Impact of remand order by the Appellate Tribunal. 6. Application of Circular No.984/08/2014-CX dated 16.9.2014. 7. Entitlement to interest on the refund amount. Detailed Analysis: 1. Refund of ?50,00,000/- Deposited Under Protest: The petitioner sought the refund of ?50,00,000/- deposited under protest during an investigation in October 2004, arguing that there was no confirmed liability against them. The petitioner claimed that the amount was deposited under coercion and should be refunded as there was no final adjudication against them. 2. Nature of the Deposit: Pre-deposit or Voluntary: The petitioner argued that the deposit should be treated as a pre-deposit under Section 35F of the Central Excise Act, 1944, as it was considered sufficient by the Appellate Tribunal to hear and dispose of the appeal. The Revenue contended that the amount was a voluntary deposit made during the investigation and not a pre-deposit as required under Section 35F. 3. Applicability of Section 35F of the Central Excise Act, 1944: The petitioner emphasized that the Appellate Tribunal treated the ?50,00,000/- as a pre-deposit for the purpose of hearing the appeal. The Revenue argued that the deposit was made voluntarily before the issuance of the show-cause notice and thus could not be considered a pre-deposit under Section 35F. 4. Jurisdiction and Authority of Revenue to Retain the Deposit: The petitioner argued that the Revenue had no jurisdiction to retain the deposit as there was no confirmed liability against them. The Revenue maintained that the deposit was made voluntarily and could not be refunded until the case attained finality. 5. Impact of Remand Order by the Appellate Tribunal: The Appellate Tribunal remanded the matter to the Adjudicating Authority for fresh determination, directing the completion of the process within four months. The petitioner claimed that the remand order entitled them to a refund of the deposit. The Revenue argued that the remand did not automatically entitle the petitioner to a refund as the case had not attained finality. 6. Application of Circular No.984/08/2014-CX dated 16.9.2014: The petitioner cited Circular No.984/08/2014-CX, which clarifies that amounts deposited during investigation or audit could be considered as pre-deposits for appeals. The Revenue contended that the circular was not applicable to the petitioner's case as the deposit was made voluntarily and not as a pre-deposit. 7. Entitlement to Interest on the Refund Amount: The petitioner argued that they were entitled to interest on the refund amount under Section 11BB of the Central Excise Act, 1944, due to the prolonged retention of their money by the Revenue. The Revenue did not specifically address the issue of interest but maintained that the refund was premature. Conclusion: The court dismissed the petition, holding that the refund claim was premature as the case had not attained finality. The court directed the Adjudicating Authority to expedite the proceedings and complete them within six months, considering the significant amount involved and the protracted litigation period. The court also emphasized the use of technological advancements, such as video conferencing, to expedite the process. The Adjudicating Authority was instructed to decide the proceedings independently, without being influenced by the observations made in the judgment.
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