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TMI Blog2019 (8) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... en the legislature makes it clear what is to be collected as pre- deposit, in the absence of any finding with regard to the non-satisfaction of such conditions as to the pre-deposit, the Revenue cannot retain such excess amount remitted by mistake. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 41040 of 2019 - - - Dated:- 9-8-2019 - P. DINESHA, J. For the Appellant: Shri. J. Shankaraman, Advocate for the Appellant Shri. S. Sivaramakrishnan, Advocate for the Appellant Shri. V. Shanmuganathan, Advocate For the Respondent: Ms. T. Usha Devi, Authorized Representative ORDER This appeal is filed by the appellant wherein it has assailed the findings of the First Appellate Authority who has rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 03.12.2018 and vide Order-in-Original No. 12/2019(R) dated 07.02.2019 rejected the refund claim. The appellant having not met with success in its appeal against the above rejection of refund before the First Appellate Authority, who vide impugned Order-in-Appeal No. 150/2019 (CTA-I) dated 07.05.2019 rejected the same, has filed the present appeal. 2.2 Ld. Advocate also submitted that although the appropriated amount of ₹ 14,02,265/- was itself much more than the required pre-deposit of 7.5%, the appellant is not seeking for refund of this excess amount so deposited, rather the appellant's claim is restricted to the additional pre-deposit made by mistake of ₹ 1,21,947/-. 2.3 Drawing attention to paragraph 3.1 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 5 of the above Circular, which is one of the instructions as regards treating of pre-deposit post first appeal. Hence, it can be very safely assumed that the Revenue has no disputes with regard to the payment made, as canvassed, during the course of investigation, which amount has been appropriated vide the Order-in-Original. If the Revenue is going strictly by the requirements of Section 35FF read with the Circular (supra), then the liability of the appellant remains at paying either 7.5% or 10% and not a penny more. Consequently, the appellant could also claim refund of every penny in excess of that 7.5% or 10%, as the case may be. 6.2 Admittedly, the appellant is not claiming refund of any part of the amount it paid during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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