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TMI Blog2023 (8) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... remand to the Adjudicating Authority. Therefore, the department's contention in the present case that the refund is arising only after passing of de novo adjudication is irrelevant and illegal without any support of law. 2.1 He submits that this issue is not under dispute in the light of board circular and the judgments as follows: Voltas Limited Vs Union of India 1999 (112) E.L.T. 34 (Del.) Circular No: 802/35/2004-CX dated 08-Dec-2004 AFCONS Infrastructure Ltd. Vs Union of India 2006 (193) E.L.T 278 (AP) Premier Machinery Mfg. Vs Commissioner of C.Ex.. Surat -1 2007 (219) E.L,T 632 (Tri-Ahmd.) Varsha Polymer Products Pvt Ltd Vs Commissioner of Cus., Kandla 2014 (301) E.L.T. 128 (Tri.- Ahmd) Poly Printers Vs Commissioner of C.Ex., Delhi 2008 (221) E.L.T. 285 (Tri.-Del) Venkateshwara Non-Ferrous Foundry Vs CC & CE (Appeals), Hyderabad 2007 (212) E.L.T. 546 (Tri.- Bang) 3. On the other hand Shri, Tara Parakash Learned Deputy Commissioner (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. 3.1 He submits that after making pre-deposit for filing the appeal since the demand was not set aside and matter was remanded to the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Number of such cases awarded interest on pre-deposits where its orders have not been implemented and the Department had challenged this and filed Civil Appeals in the Supreme Court. 3. The Board has noted the observations of the Hon'ble Supreme Court in its order dated 21-9-2004 and has decided that pre-deposits shall be returned within a period of three months of the disposal of the appeals in the assessee's favour. 4. Accordingly, the contents of the Circular No. 275/37/2000-CX. 8A dated 2-1-2002 [2002 (139) E.L.T. T38], as to the modalities for return of the pre-deposits are reiterated. It is again reiterated that in terms of Hon'ble Supreme Court's order such pre-deposit must be returned within 3 months from the date of the order passed by the Appellate Tribunal/Court or other Final Authority unless there is a stay on the order of the Final Authority/CESTAT/Court, by a superior Court. 5. Delay beyond this period of three months in such cases will be viewed adversely and appropriate disciplinary action will be initiated against the concerned defaulting officers. All concerned are requested to note that default will entail an interest liability, if such liability accrues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercising such a power to make a remand, the Tribunal chooses to qualify it by conditions without which the order of remand itself would not have been made. We have specifically asked the learned Counsel for the respondents if there is any statutory power or any principle of law conferring the Tribunal with such jurisdiction? None has been brought to our notice excepting what was already contended and noted hereinabove. 7. It cannot be denied that the demand against the petitioner was raised consequent to the order of adjudication. Section 35F of the Act under which the petitioner was required to deposit the amount of Rs. 50 lakhs speaks of `deposit pending appeal'. It is clear that the amount so deposited remains a deposit pending appeal and is thereafter available for appropriation or disbursal consistently with the final order maintaining or setting aside the order of adjudication. 8. In this case, the matter has been remanded inasmuch as the Tribunal was of the opinion that the adjudication was not satisfactory and it required a fresh application of mind. In our opinion, once the order of adjudication was set aside, the Tribunal could not have ordered the amount of pre-depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the respondent authorities. Accordingly, the writ petition is allowed in part with a direction upon the respondents to pass orders for payment of interest in accordance with the concerned Circular referred to in the order of the Supreme Court in Commissioner of Central Excise, Hyderabad v. I.T.C. (supra) within a period of one week from the date of communication of a copy of this judgment and order." 4.5 further in the case of Premier Machinery Mfg. (supra) the tribunal considering the same issue related to interest on refund of pre-deposit, given the following order: "[Order]. - The dispute in the present appeals relates to grant of interest on the amount deposited by the appellant in terms of Tribunal's stay order, when the impugned order was ultimately set aside and matter remanded. It is seen that the subject pre-deposited amount of Rs. 1.50 lacs has been refunded to the appellant, but the interest does not stand paid on the ground that the appellant is entitled for interest on refund amount when the decision comes in their favour in as much in the instant case, the matter was only remanded, it cannot be said that decision was in their favour. 2. I note that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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