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TMI Blog2019 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise(Appeals)? HELD THAT:- The actual liability would be determined subsequent to the order of the Appellate Authority. On the liability created towards the penalty, the amount in balance deposited by the assessee would have been appropriated/adjusted. No question of refund would have arisen if no appeal was preferred by the assessee though relating to the penalty aspect. The actual liability is crystallized subsequent to the order passed by the Appellate Authority. The doctrine of merger being applicable to the case on hand to determine the actual liability and to raise the demand, the relevant date in terms of Section 11B (1) of the Act would be 03.03.2010, the date of passing of the order by the Appellate Authority. The view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty levied under Sections 77 and 78 of the Act, 1994. The Appellate Authority confirmed the penalty of ₹ 1,000/- levied under Section 77 of the Act, 1994 and set aside the penalty imposed under Section 78 of the said Act by order dated 03.03.2010. Pursuant to which a refund claim was made by the assessee on 12.08.2010 which has been rejected as time barred. Being aggrieved by the same, assessee preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bengaluru. The said appeal has been rejected. Hence, the assessee is in appeal before this Court. 3. Learned counsel for the assessee submits that the order of original adjudicating authority has merged with the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such Form an manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if, any, paid on such duty had not been passed on by him to any other person. 11B(5)(ec) in case where the duty becomes refundable as a conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice was deposited by the assessee. 10. The stand of the respondent-revenue that section 11B(5)(ec) is not applicable to the order passed by the original adjudicating-authority and even otherwise, the refund application dated 12.08.2010 filed by the assessee is beyond the period of one year from the date of the order of the original-authority cannot be countenanced. 11. At this juncture, it would be beneficial to refer to the judgment of the Hon ble Apex Court in the case of Commissioner of Income Tax, Bombay vs. Amritlal Bhogilal Co. reported in AIR 1958 SC 868, whereby the Hon ble Apex Court has observed thus: 10. There can be no doubt that, if an appeal is provided against an order passed by a tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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