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TMI Blog2021 (12) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... s and insecticides. Based upon an investigation conducted by DGCEI in the year 2013 observing that the appellant has manufactured and removed excisable goods to specified parties without assessing their duty liability properly that two show cause notices dated 07.11.2016 and 02.08.2016 were served upon the appellants proposing the recovery of duty amount of Rs. 7,24,78,627/- and Rs. 12,96,503/- respectively. The demand was initially confirmed whereafter appeal before this Tribunal was filed. Vide Final Order No.51154-51158/2019 dated 17.07.2019, the matter was remanded back for fresh adjudication after proper verification and examination of records. Before the issuance of the said two show cause notices appellant had deposited a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the balance lying in their Cenvat Credit Account as on 30th June 2017. 4. Ld. Counsel has laid emphasis upon section 142 of CGST Act in pursuance whereof such balance has to be refunded in cash to the assessee. The order under challenge is, accordingly, prayed to be set aside and appeal is prayed to be allowed. 5. To rebut the submissions, ld. D.R. has laid emphasis upon the findings in para 6, 7 & 8 of the Order under challenge wherein it has been appreciated that any payment made during the course of investigation or audit prior to the date on which appeal is filed, to the extent of 7.5% or 10%, can be considered to be a deposit made towards fulfillment of stipulation under section 35 F of the Central Excise duty. Accordingly, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as an amount of pre-deposit till the appeal of the appellant was not decided by the Tribunal. Once the Tribunal's order setting aside the demand had attained finality, the amount equivalent to the 10% of the impugned duty was calculated as Rs. 44 Lakhs, hence, was refunded. However, Rs. 21 Lakhs is also part of such money of appellant for which he was never liable towards the Department. Accordingly, Department is not entitled to retain the same or to become unjustly rich by retaining the money of the assessee. Once the proposed duty demand against the appellants stands set aside, the entire basis of deposit as was made by the appellant fails to survive. Department cannot be allowed to retain any part of the said amount. Above all, whene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ER-1 as on June 30, 2017 which was not transferred to GST Regime. Hence, is as good as the cash lying with the Department and has to be treated as equal to the debit of the Cenvat account in terms of Section 142 of GST Act. The said amount has mandatorily to be refunded to the assessee in cash. 8. From the above discussion, it stands clear that appellant is entitled for refund of Rs. 15 Lakhs as were paid in cash by him at the time of the investigation of the impugned proceedings and is also entitled for refund of Rs. 6 Lakhs in cash as was being paid from his Cenvat Credit Account at the same stage as mentioned above and that appellant has been held to not to be liable to pay the alleged amount of duty which includes said Rs. 21 Lakh als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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