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TMI Blog2019 (1) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on had no correlation and were in deviance from the declarations made to the department; (3) alleging additional consideration of flow back received directly by the appellants and was not loaded to the assessable value etc. The said show cause notice was adjudicated by the then jurisdictional Commissioner, Hyderabad- III vide OIO No. 88/97, dated 29.12.1997, who while rejecting the plea of the appellants about the existence of genuine gate sales, partially allowed their claims and the demand confirmed to Rs. 1,61,81,601/-, out of which certain amounts were already paid by the appellants and the remaining amount to be recovered worked out to Rs. 1,26,29,491/-. The Commissioner also imposed a penalty of Rs. 13,00,000/-. Aggrieved by the said OIO, the appellants appealed before Hon'ble CESTAT, along with waiver of pre-deposit and stay vide appeal No. E/ST/325/98 in E/459/98. While the stay applications were pending, the department resorted to coercive measures for recovery of the above demands. The appellants approached Hon'ble A.P. High Court by filing a writ petition No. 3148 of 1998 seeking stay of recovery of the above amounts. In their writ petition the appellants had also sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred appeal before Hon'ble CEGAT against the Commissioner's order. The Hon'ble Tribunal in its final order No. 999/2005 dt. 23.6.2005 remanded the matter back to the original adjudicating authority considering the methodology adopted for refusing the genuineness of factory gate sales that they were less than 3% was without any basis or evidence. The case was taken-up for denovo adjudicating by Commissioner, Hyderabad -II as the appellants had fallen in his jurisdiction after reorganisation. The Commissioner vide his OIO No. 2/2008 dt. 12.9.2008 held that following the ratio of Hon'ble Supreme Court and Tribunal decisions, he was inclined to accept the contention of appellants and upheld that the ex-factory price would form the basis for assessment of the goods cleared from the depots. He however disallowed interest on inventories, interest on receivable and freight on sales as abatements from the depot prices so as to arrive at the assessable value. He confirmed the total duty demand of Rs. 1,61,81,601/- and imposed a penalty of Rs. 15,00,000/-. The appellants again preferred an appeal before Hon'ble CESTAT, Bangalore against this OIO. The Hon'ble CESTAT vide its Final Order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly incorrect as of now the Tribunal has held the matter in their favour and during the relevant period, the appellant had filed an appeal before the Higher Authority against the order of the confirmed the demands. She submits that interest is payable by the appellant from October, 2000 when first order of the Adjudicating Authority was set aside and matter was remanded. It is her submission that they have paid these amounts two times of Rs. 35,52,510/- during the investigations and Rs. 50,00,000/- as per the directions of the Hon'ble Andhra Pradesh High Court. It is her further submission that the Adjudicating Authority's order was set aside by the Tribunal on October, 2000 interest, accrues after three months from that date and Central Board of Excise & Customs by Circular Nos. 802/35/2004-CX., dated 8-12-2004 & F. No. 275/37/2K-CX. 8A, dated 2-1-2002 had categorically stated that predeposit shall be returned to the appellant after the disposal of the order in the appellant's favour. It is her submission when the first order of the Tribunal in October, 2000 is setting aside the Order-in- Original, but of course is a remand order. She submits that Hon'ble High Court of Andhra Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 of the Central Excise Act, 1944. ii) whether any interest is payable towards the delayed refund and if is yes from when. 7. It is undisputed and stated in the open court by the Learned Counsel that appellant had received the refund of Rs. 50,00,000/- and that there could a possibility that amount of Rs. 35,52,510/- may also be sanctioned but she unable to confirm the same during the process of hearing. 8. As regards the adjustment of refund claim towards the arrears which were construed by the Department as confirmed arrears, we find that Learned Counsel was correct in submitting that there were no arrears which are due to the Government, as the Order-in-Original which confirmed the demands raised against which the refund claims was adjusted towards arrears, was in appeal and appeal was held in favour of the appellant. In short, the issue on merits today is in favour of the appellant and there are no dues that arises from him. In scenario, both the lower authorities have erred in adjusting the refund amount of Rs. 35,52,510/- as towards arrears and if the same is not refunded to appellant, the same should be refunded forthwith. The issue is no more res integra as Hon'ble Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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