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TMI Blog2021 (6) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... that too without supplying the copy of the Order-in-Appeal passed by the Commissioner (Appeals). Further, I find that the authorities below has wrongly considered the said refund under Section 11B of the Central Excise Act whereas the appellant has sought the refund on the ground that once he has filed the appeal before the Tribunal on payment of 10% duty then the recovery is automatically stayed and the Department cannot retain the amount forcibly recovered from the bank account of the appellant during the pendency of the appeal before the Tribunal. Since the appeal of the appellant is pending and during the pendency of the said appeal, the Department cannot withhold the amount recovered from the appellant without serving the copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ventive Wing of the Department visited the premises of the appellant on 17.08.2011 and on verification of the records, raised an objection with regard to availment of CENVAT credit of ₹ 20,55,088/- on the capital goods i.e. Transit concrete mixer and FB Tipper for the period March and April 2011. The Department also recorded the statement of Ms. Aruna, the Administrator of the appellant and issued a SCN on 30.03.2012 proposing to deny the CENVAT credit of ₹ 20,55,088/- along with interest apart from proposing to demand Central Excise duty of ₹ 1,21,575/-. After following the due process, the Additional Commissioner of Central Excise confirmed the demand of denial of CENVAT credit and also confirmed the Central Excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they again vide letter dated 12.03.2019 requested for furnishing the copy of Order-in-Appeal but no communication was received from the Deputy Commissioner and in the meantime, the Deputy Commissioner without furnishing the copy of the Order-in-Appeal recovered an amount of ₹ 49,14,592/- on 12.03.2019 from the current account maintained by the appellant with Andhra bank. Thereafter, the appellant vide his letter dated 13.03.2019 approached the Commissioner of Central Tax, Belgaum with a request to furnish the certified copy of the Order-in-Appeal and the office of the Commissioner (Appeals) vide letter dated 29.03.2019 furnished the copy of the Order-in-Appeal and thereafter, the appellant immediately filed the appeal before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records of the case. 4. Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that in the impugned order, the Commissioner (Appeals) has failed to appreciate that the amount collected by the Department in excess of pre-deposit with the Department is without authority of law and the Department has no right to retain the amount recovered during the pendency of the appeal. He further submitted that it is a well settled law that no amount can be recovered except by authority of law as it is hit by Article 265 of the Constitution of India. He further submitted that as per provision of Section 35F of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013(293) ELT 504 (P H). Bhagwati International Vs UOI, 2005 (190) ELT 300 (P H). Sujaya D. Alwa Vs CCE ST, Mangalore, 2019 (28) GSTL 196 (Kar.). Enmas Andritz Pvt. Ltd. Vs CESTAT, Chennai, 2019 (28) GSTL 196 (Kar.). Monnet International Ltd. Vs CCE, New Delhi, 2017 (3) GSTL 380 (Tri. Del.) 4.1 Learned Counsel also referred to Circular No.984/8/2014 dated 16.09.2014 vide which the provision of pre-deposit was incorporated. The learned Counsel also relied upon the decision of the Chennai CESTAT in the case of M/s UR Options Vs Commissioner of GST, Final Order No.41021/2019 dated 09.08.2019 passed in Appeal No.41040/2019. 5. On the other hand, learned AR reiterated the findings of the impugned order. 6. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 which was admitted by the Tribunal by holding that the appeal is filed within time from the date of receipt of the copy of the order. Further, I find that once the appeal was admitted thereafter the appellant sought the refund of the amount recovered by the Deputy Commissioner without serving the Order-in-Appeal. It is really strange that after the decision of the Commissioner (Appeals) dated 30.12.2014, no recovery proceedings was initiated by the Department for 4 years and all of a sudden after more than 4 years, the recovery was sought by writing a letter and that too without supplying the copy of the Order-in-Appeal passed by the Commissioner (Appeals). Further, I find that the authorities below has wrongly considered the said refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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