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TMI Blog2016 (3) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. E/396, 453 & 1769/11 - - - Dated:- 13-1-2016 - SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri R.D. Wagley, Advocate with Ms. Anagha Gavade, Advocate For the Respondent : Shri N.N. Prabhudesai, Supdt. (AR) ORDER PER: RAJU M/s Shoreline Hotel Pvt. Ltd. (hereinafter called as SHPL) were visited by the Revenue officers on 11.11.1997 by the Central Excise Officers. A case was booked against them in respect of furniture found in their premises, manufactured by M/s Interscape. M/s SHPL paid ₹ 11 lakhs under protest from 10.12.1997 to 3.02.1998 during investigations. A show-cause notice was issued to M/s SHPL on 15.4.1998. Later on, on the basis of same investigations, a show-cause notice was issued on 21.11.2000 to M/s Interscape demanding duty from them on the very same furniture. In the said notice the appellants were also asked to show cause as to why the furniture seized in their premises not be confiscated and why ₹ 11 Lakhs paid by them not be appropriated against it. The notice dated 21.11.2000 against M/s Interscape was adjudicated and the duty was confirmed against M/s Interscape. In the same order, the furniture found in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HPL was pending in CESTAT at the time of review and, therefore, the statement made in review is incorrect. 2. Consequent to the order of Commissioner (Appeals) dated 20.12.2010, Revenue filed an appeal in CESTAT, challenging the order allowing the refund. The said order of Commissioner (Appeals) did not direct any interest and, therefore M/s SHPL filed an appeal against the said order of the Commissioner (A) seeking directions to Commissioner (A) to pass suitable orders for grant of interest. Later on Dy. Commissioner of Central Excise following the order of Commissioner (A) sanctioned refund of ₹ 11 lakhs vide order dated 9/10.8.2011. M/s SHPL filed an appeal before Commissioner (Appeals) against the said refund order seeking interest on the refund. The Commissioner (Appeals) vide order dated 30.11.2011 rejected the claim of interest on the ground that the refund has been sanctioned only as a consequence of the order of Commissioner (Appeals) dated 20.12.2010 and since no stay could be obtained from CESTAT. M/s SHPL filed an appeal against the order of Commissioner (Appeals) dated 30.11.2011 rejecting the claim of interest on refund. Thus there are two appeals against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged the said order and, therefore, are not entitled to any refund claim. He further argued that in this case the cause of action for refund does not arise, as the case is still pending adjudication before Commissioner after remand by Tribunal. He argued that in case of Interscape, the cause of action has arisen as a result of CESTAT order dated 19.7.2005 in which M/s Interscape had deposited ₹ 15 lakhs as pre-deposit under Section 35F of the Central Excise Act. He argued that no pre-deposit was made by M/s SHPL and therefore, the said order does not become the cause of action in respect of M/s SHPL. He argued that the order of the Tribunal issued in respect of M/s Interscape dated 21.5.2010, which has been cited by Commissioner (Appeals) in his order dated 20.12.2010, is incorrect as the said order was not in respect of M/s SHPL. He argued that the order of CESTAT in case of Interscape cannot be made applicable to M/s SHPL in view of the following decisions: - (i) Mafatlal Industries Ltd. Vs. Union of India - 1997 (89) ELT 247 (SC), wherein the Hon'ble Supreme Court has held that the theory of mistake of law and the consequent period of limitation of three years f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed against them and the validity of which had never been challenged by them. Therefore, no refund of duty could be legally claimed by them. The impugned order of the Commissioner (Appeals) consequently cannot be sustained and is set aside. The appeal of the Revenue is allowed. 5. I have gone through the rival contentions. I find that M/s SHPL had paid an amount of ₹ 11 lakhs during 10.12.1997 to 3.2.1998, whereas statements were recorded during the period 11.11.1997, when the officers visited the SHPL premises, to 15.4.1998, when the first show-cause notice was issued. Subsequently, it is noticed that on the same set of statement recorded during 11.11.97 to 15.4.98, another show-cause notice was issued on 21.12.2000 to M/s Interscape. In the second show-cause notice, SHPL were issued to show cause as to why the furniture valued at ₹ 2,04,95,235/- situated in their premises on 18.2.1998 should not be confiscated and ₹ 11 lakhs paid by them should not be appropriated against it. The Order-in-Original dated 23.1.2001 confirmed these charges and ordered confiscation of seized goods valued at ₹ 2,04,95,235/- at the premises of Hotel Marine Plaza belonging t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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