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TMI Blog2023 (1) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... . 51438 of 2022 - FINAL ORDER No. 50039/2023 - Dated:- 6-1-2023 - DR. RACHNA GUPTA, MEMBER (JUDICIAL) Mr. Rohit Choudhary Ms. Preeti, Advocates for the appellant Mr. Mahesh Bhardwaj, Authorized Representative for the Respondent ORDER The present appeal has been filed to assail the order in Appeal No. EX-CUS-000-APP-021 to 022 2021-22 dated 15.06.2021 vide which the order of rejection of refund claim of the appellant has been upheld. The facts in brief giving arise to the present appeal are reproduced herein below:- The appellant is engaged in providing service of commercial and industrial construction and construction of residential complex and has also been registered for providing the said services. A Show Cause notice dated 13th January, 2012 was issued to the appellant proposing recovery of service tax for an amount of Rs.1,80,80,651/- for the period from 1st April 2009 to 31st July, 2011 alleging that the construction services as being provided by the appellant were for the purpose of commerce and were therefore taxable. The demand was confirmed vide the Order-in-original dated 29.03.2013, however, for an amount of Rs.9423765/- alongwith the equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to be the payments as that of pre-deposit under section 35 F of Central Excise Act 1944 or under Section 129 E of Customs Act, 1962. The Circular further elaborates that for such deposits the date of filing of appeal shall be deemed to be the date of deposits made in terms of the said section. The Circular also clarifies that pre-deposit for filing an appeal is not the payment of duty. 5. Ld. Counsel has also relied upon the decision of Hon ble High Court of Allahabad in the case of Ebiz.Com Pvt. Ltd. Vs. Commissioner of Central Excise, Customs and Service Tax and Ors. Reported as was passed in Civil Miscellaneous Writ Petition No.578/2016 decided on 12.09.2016 wherein it was held that the amount deposited by the assessee till is not appropriated by the Department it shall remain in the nature of deposit or pre-deposit With theses submissions it is impressed upon that Section 11 B has wrongly been invoked. The one year limitation of the said section is not applicable to the impugned amount which is apparently a pre-deposit / a deposit. It is further impressed upon that even if the limitation has to be looked into the date reckoning for the same is not the Final Order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 26.03.2013 attached on record). The Demand was otherwise raised by Show Cause Notice dated 13.01.2012. The demand was initially proposed for Rs.1,80,80,651/- and the proposed demand was confirmed partially for an amount of Rs.94,23,765/-. Apparently and admittedly, when this confirmation of demand was challenged, this Tribunal vide Stay Order of 04.08.2015 held that the amount already deposited by the appellant in proportion to the confirmed demand, is such as meets the requirement of section 35 of Central Excise Act, 1944 read with Section 83 of the Finance Act (para 4 of the said order). These observed facts are sufficient for me to hold that the amount for which the refund is claimed was an amount of deposit/pre-deposit. I draw my support from the decision of Hon ble Apex Court in the case of Sandvik Asia Ltd. Vs. Commissioner of Income Tax, Pune reported in 2006 (196) ELT 0257 (S.C.) wherein it is held that any amount deposited during investigation pending litigation is ipso facto an amount of pre-deposit and even interest is payable on such amount to the assessee being successful in appeal from the date of deposit till the date of refund. This Tribunal also in the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1962. Any shortfall from the amount stipulated under these sections shall have to be paid before filing of appeal before the appellate authority. As a corollary, amounts paid over and above the amounts stipulated under Section 35 F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, shall not be treated as deposit under the said sections. 3.2 Since the amount paid during investigation/audit takes the colour of deposit under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 only when the appeal is filed, the date of filing of appeal shall be deemed to be the date of deposit made in terms of the said sections. 3.3 In case of any short-payment or non-payment of the amount stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, the appeal filed by the appellant is liable for rejection. Para 5 thereof that Circular reads as follows:- 5. Refund of pre-deposit: 5.1 Where the appeal is decided in favour of the party / assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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