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TMI Blog2018 (10) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of demand of ₹ 12,79,223/- set aside. Matter remanded back to the Original Adjudicating Authority for verification of payment of ₹ 77,590/- for the period from 17.06.2004 to 30.06.2004 and thereafter to pass appropriate order in respect of demand of ₹ 77,590/-. Appeal disposed off. - APPEAL No. E/52009/2014-EX[DB] - A/72058/2018-EX[DB] - Dated:- 24-8-2018 - Smt. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri S. Sunil, Advocate for Appellant Shri Pawan Kumar Singh, Supdt (AR), for Respondent ORDER Per: Anil G. Shakkarwar The present appeal is directed against Order-in-Appeal No. MRT/EXCUS/002/APP/157/13-14 dated 15/10/2013 passed by Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy existing undertaking which has undertaken substantial expansion by way of increase in installed capacity by not less than 25% on or after 7.1.03. (ii) During the period from 15 th January, 2003 to 24 th July, 2003, appellant had cleared their final products on full payment of duty. (iii) Since actual substantial expansion in the installed capacity was completed by the appellant in its factory after 7 th January, 2003 which was the cut-off date given in the notification, an Application dated 16 th July, 2003 was filed with the departmental authorities claiming exemption from payment of duty in terms of Notification No.49/2003-CE and 50/2003-CE. (iv) Before allowing exemption, the Assistant Commissioner, Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.47/2004-05 dated 01.07.04. The breakup of payments made are also referred to in Show Cause Notice dated 29.04.05 (infra), which are reproduced hereunder for ready reference:- 1. Bank Guarantee: ₹ 2,50,000/- 2. FDR (including interest): ₹ 10,29,223/- 3. Duty paid under protest for the period 17.06.04 to 30.06.04: ₹ 77,590/- Total:Rs.13,56,813/- (vii) Order dated 15.06.04 was carried in appeal by the appellant before the learned Commissioner (Appeals). The learned Commissioner (Appeals) allowed the appeal of the appellant vide Order-in-Appeal No.168-CE/MRT-II/2004 dated 10.08.04. (viii) Since the decision of the learned Commissioner (Appeals) was in favour of the appellant, they filed a refund claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to the appellant s depositing an amount of ₹ 10,26,78,350/-, no coercive shall be taken for recovery of the demand. (xvii) The appellant filed another IA before the Hon ble Supreme Court showing the manner in which deposits have been made and also seeking stay of remaining demand. For the sake of ready reference, the details of deposits furnished before the Hon ble Supreme Court are reproduced hereunder: (a) An amount of ₹ 30,00,000/- was deposited by the appellant vide Challan Nos.00009 dated 19.07.10, 00008 dated 21.07.10, 00036 dated 19.08.11, 00042 dated 16.02.12 and 00045 dated 23.02.12, as communicated by them to AC vide letter dated 13.03.12, (b) An amount of ₹ 1,17,577/- was deposited by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Respondent is also included in the amount which has been deposited by the Respondent in compliance with the order of the Hon ble Supreme Court and Hon ble High Court. (xxi) The Revenue preferred an appeal against the said order of the Addl. Commissioner contending that out of the total refund amount of ₹ 13,56,830/-, only ₹ 12,79,223/- pertains to the demand pending before the Hon ble Supreme Court and amount of ₹ 77,590/- pertains to the SCN dated 0507.05. Any amount which has been deposited by the Respondent is either in compliance with the decision of the Hon ble Supreme Court or in accordance with the provisions of Section 35F of the Central Excise Act, 1944. Therefore, unless and until there is a final d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-, as the said amount was stated to have been available in the Cenvat credit. Further, he submitted that out of the amount of ₹ 13,56,813/-, amount of ₹ 77,590/- was duty paid under the protest for the period from 17.06.2004 to 30.06.2004 which was a period beyond the period covered by finalization of assessment on 15.06.2004 and that balance amount of ₹ 12,79,223/- was covered by the matter pending before Hon ble Supreme Court. He further submitted that the said amount of ₹ 77,590/- which pertains to subsequent period stands paid by them. He, therefore, contended that by the impugned order passed by the Commissioner (Appeals), there will be double recovery of ₹ 13,56,813/- from the appellant and therefore, he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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