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TMI Blog2018 (10) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... his position was also clarified by the board vide circular dated 10.03.2017 wherein the board has observed that refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944. Appeal allowed - decided in favor of appellant. - APPEAL NO. ST/61223/2018 - A/62995/2018-SM[BR] - Dated:- 10-9-2018 - Mr. S.S. Garg, Member (Judicial) Present for the Appellant(s): Shri Om Prakash (Advocate) Present for the Respondent(s): Shri Bhasha Ram (AR) ORDER Per: S.S. Garg The present appeal is directed against the impugned order dated 28.05.2018 passed by the Commissioner (Appeal). 2. Briefly the facts of the case are that the appellant are registered with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable in law as the same is contrary to the provisions of the Act and the binding judicial precedents, he further submitted that the appellant made a pre-deposit of 7.5% of the amount of service tax while filing the appeal before the Commissioner (Appeal) as per Section 35F and they again paid pre-deposit of 10% while filing appeal before the Customs Excise Service Tax Appellate Tribunal under Section 35F in total, the appellant has paid 17.5% whereas they were required to pay only 10% as per Section 35F. He further submitted that the legal position that 10% of amount (including) that deposit for filing the appeal before the Commissioner (Appeal) is required for filing appeal before the Tribunal stand settled by the High Court of Delhi in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty after considering the submissions of the appellant has rightly allowed the refund of excess 7.5% of the predeposit, further I also find this position was also clarified by the board vide circular dated 10.03.2017 wherein the board has observed that refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944. Further, I find that this issue is squarely covered by the decision of the Delhi High Court in the case of M/s Santani Sales organization Vs. CESTAT, Delhi (Supra) and following the ratio of the said decision, I am of the considered view that the impugned order is not sustainable and the same is set aside by allowing the appeal with consequential relief if any. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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