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TMI Blog2017 (5) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... n their circular makes a mention that refund in case of pre-deposit is to be made without insisting upon refund applications u/s 11B(1) of CEA within period of three months from the disposal of the appeal. Appeal allowed - decided in favor of appellant. - Appeal No. E/2126/2008-SM - Final Order No. 53177/2017 - Dated:- 1-5-2017 - Hon ble Mr. Ashok K. Arya, Member (Technical) Shri Rahul Tangri, C.S. - for the appellant Shri G.R. Singh, D.R. - for the respondent ORDER Per Ashok K. Arya M/s Rewa Fan Industries is in appeal against the Order-in-Appeal No. 108/2008 dated 24th July, 2008 whereunder the claim of interest on refund of pre-deposit made pursuant to the Stay Order No. 371-37592-A dated 27.8.1992 has been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Order No. 3/2015 dated 18.2.2005 before Commissioner (Appeals), Bhopal, who passed Order-in-Appeal No. 35-39/2006 dated 25.1.2006 and gave certain findings for respective period of Jan. 1986 to August, 1987 and Sept. 1987 to Nov. 1988, and ordered for quantification of demand based on the said findings of Commissioner (Appeals). This Order-in-Appeal also imposes a penalty of ₹ 50,000/- on the appellant. (vii) The appellant on 28.9.2006 quantified the demand in terms of Order-in-Original dated 25.1.2006, which came to ₹ 4,77,242.50. After taking account of the penalty of ₹ 50,000/- imposed by Order-in-Appeal dated 25.1.2006 and of the requantified demand of ₹ 4,77,242.50, the deduction was made from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Ld. Counsel for the appellant refers to department s Circular No. 275/37/2K-CX-8A dated 2.1.2002 and another Circular No. 802/35/2004-CX dated 8.12.2004 which is on the subject of return of deposits made in terms of Section 35F of Central Excise Act, 1944 and Section 129E of the Customs Act, 1962. 6. After perusing the facts on record and submissions of both the sides, it appears that the assessee appellant is eligible for the interest on the delayed refund by the department as per instructions/clarifications issued by CBEC and the decisions of higher judicial fora. 6.1 In Circular No. 275/37/2K-CX-8A dated 2.1.2002 (supra) it is observed that: The issue relating to refund of pre-deposit made during the pendency of appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been implemented and the Department had challenged this and filed Civil Appeals in the Supreme Court. 3. the Board has noted the observations of the Hon ble Supreme Court in its order dated 21.9.2004 and has decided that pre-deposits shall be returned within a period of three months of the disposal of the appeals in the assessee s favour. 6.3 The Hon ble Delhi High Court in the case of Voltas Ltd. Vs. Union of India 1999 (112) ELT 34 (Del.) observes as under: 7. It cannot be denied that the demand against the petitioner was raised consequent to the order of adjudication. Section 35F of the Act under which the petitioner was required to deposit the amount of ₹ 50 lakhs speaks of `deposit pending appeal . It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, looking at the facts and circumstances of the present case, it appears to us that the Respondents were wrong throughout. They proceeded to demand duty from the Petitioner in a clearly time barred case and because the Department took a wrong view of the matter; we see no reason why the Petitioner should be made to suffer loss of interest on the large amount of Rupees Twenty lakhs for a period of almost three years and more. 6. Mr. Jetley made an effort to persuade us that the consequence of the CEGAT s order was that the Petitioner would continue to be liable for the duty demanded initially and that the deposit was legitimately and rightfully withheld by the Respondents. We are unable to accept this contention. The CEGAT s order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard Tribunal has given decision in the case of Ispat Traders Vs. CCE, Jamnagar 2011 (263) ELT 305 (Tri.-Ahmd.), where observations have been made as under: 21. The decisions cited by the learned advocate before me and discussed above and the circulars issued by the Board show clearly that whether the amount was deposited during investigation or paid subsequent to the order confirming the demand or paid as a result of direction of the Tribunal/Court, is required to be refunded with interest at 12% to the appellant when the issue is decided in their favour. Further it is also clear from the precedent decisions that even when a case is remanded to the original adjudicating authority, the amount deposited is required to be refunded. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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