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TMI Blog2010 (12) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... ment made by the respondent to avoid interest penalty, as pre-deposit under Section 35-F of the Central Excise Act, 1944 and accordingly, the refund of the same not subjected to the test of unjust enrichment? [b] Whether the Tribunal committed error in not following the decision of Hon'ble Supreme Court in the case reported at 2000 (120) E.L.T. 50 (S.C.) in the case of Union of India v. M/s. Raj Industries, squarely applicable in the facts of the case of voluntary payment by assessee and further erred in following the cases which were factually on different aspects?" 2. The respondent assessee is engaged in the business of Customs House Agent. In connection with the cenvat credit availed by it on input services, a show cause notice c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the assessee preferred appeal before the Commissioner (Appeals) and succeeded. The revenue took the matter in appeal before the Tribunal, but did not succeed. 3. Mr. Y. N. Ravani, learned Senior Standing Counsel for the appellant submitted that both, the Tribunal, as well as the Commissioner (Appeals) had erred in treating the voluntary payment made by the assessee immediately after issuance of the order in original to avoid payment of interest as pre-deposit under Section 35F of the Act. It was urged that any amount paid voluntarily to avoid interest liability cannot be equated with pre-deposit under Section 35F of the Act and as such, the refund claimed by the assessee was subject to the test of unjust enrichment and as the burd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty or interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under the Act, is required to deposit the duty and interest demanded or penalty levied with the proper officer. Under the section such amount has to be paid by such person on his own and does not require any order to be passed before making such deposit. Deposit of the said amount is a pre-condition for entertaining the appeal. What is important to note is that the amount to be deposited before the appeal can be entertained on merits is nothing else but the amount of duty and/or interest, or penalty demanded in consequence of an order-in-original. In principle the deposit is of duty or interest or penalty. The term " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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