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TMI Blog2018 (6) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 35F, after three months from the Tribunal's Final Order dated 23/3/06 in terms of provisions of Section 35 FF of the Central Excise Act, 1944. 2. The brief facts of the matter are that the Respondent are the manufacturer of Pharmaceuticals Products falling under Chapter Heading 30 of the First Schedule to the Central Excise Tariff Act, 1985. Four Show Cause Notices were issued to the Appellants for the period from 1998 to 30/06/04 alleging that they were not entitled for the benefit of Notification No. 06/2002 - CE. The Adjudicating Authority i.e. Commissioner (Appeals) vide Order-in-Original dated 28/09/05 confirmed the demand of Rs. 3,80,11,106/- alongwith interest and penalty. Being aggrieved the Respondent filed Appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) vide impugned order dated 16/1/18 allowed the Appeal filed by the Respondent inter-alia holding that: i) The claim for refund of pre-deposit of Rs. 50 lakhs was not barred by limitation as prescribed in Section 11AB of the Act as these provisions do not apply to refunds of pre-deposit. ii) There is no requirement of filing of application for the refund of pre deposit, as held by various judicial decisions as well as in the light of CBEC Circular dated 2/1/2002 and 8/12/2004 respectively. iii) The provisions of Section 35FF regarding interests on pre deposits although introduced w.e.f. 10/5/18 but it would apply for all refunds including the refunds of pre-deposit made prior to that date. Therefore, interest at the rate specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to do so, decide such application within thirty days from the date of its filing.] [Explanation - For the purposes of this section "duty demanded" shall include, - (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made there under.] xxx xxx xxx Section 35FF Interest on delayed refund of amount deposited under the proviso to section 35F - Where an amount deposited by the appellant in pursuance of an order passed by the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Indirect Tax Enactments for return of such deposits and which are pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be processed as such. Similarly, bank guarantees executed in lieu of cash deposits shall also be returned. xxx xxx xxx Circular: 802/35/2004-CX dated 08 Dec 2004 - The Board has taken a strict view with regard to non-returning of such deposits. The Board has noted the observations of the Hon'ble Supreme Court in its order dated 21/09/2004 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. It is again reiterated that in terms of Hon'ble Supreme Court's order such pre dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 11BB after the expiry of three months from the date of communication of the Order till the date of the refund should be paid along with the refund of deposit. Undoubtedly, the said provision has come into force w.e.f. 10/05/08, nevertheless, the principle which sought to be communicated under the said provision of law would apply to every case where the amount is illegally withheld. Before the introduction of Section 35FF in the statute, there was no provision governing liability to pay interest on delayed refund of pre-deposit. However, with the introduction of 35FF in the Act, a statutory right has been created in favour of the claimants, to automatically become liable to get the refund of pre-deposit and also, interest if not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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