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TMI Blog2009 (2) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... paste, herbal shikakai powder and detergent powder bearing brand name SAMRAT, had filed a refund claim on 17-5-07 for an amount of Rs. 42,29,036/- being duty and adjudication levies paid under protest. There are two parts on the issue involved. The first part starts with an offence case booked by the department on 16-12-97 alleging that the said excisable products were cleared without payment of duty. A show cause notice was issued on 3-3-99 and the same was confirmed by jurisdictional Commissioner i.e., Bangalore-II Commissionerate vide his Order-in-Original No. 2/2001 dated 23-1-2001. Appeal was filed against it, and CEGAT vide stay order No. 324/2001 directed the assessee to pre-deposit 50% of duty and penalty. The appellants pre-deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants preferred an appeal to the Commissioner (A), who after considering the submissions made by the appellants came to the same conclusion and dismissed their appeal. The appellants are before us against such an order. 3. The learned Counsel appearing on behalf of the appellant would submit that the interest on liabilities arises as soon as the order is in favour of the appellant. It is his submission that the interest on the amount of Rs. 4,56,000/- made as a pre-deposit, the interest is payable from that date and not from the date as has been granted by the Adjudicating Authority. As regards, the amount of Rs. 27,800/- paid by them, it is his submission that this amount was paid through PLA and should be considered as under protest, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty on inward transportation, the issue which was not challenged by the appellant before the lower authorities as to the payment of amount being under protest, we find that the lower authorities were correct in rejecting the claim of amount of Rs. 27,800/- and interest thereof. In the absence of any protest of the payment of the duty, it cannot be presumed by the revenue that the said duty is paid under protest. Accordingly, in our considered opinion, the impugned order to the extent it dismissed the appeal of the appellant for the rejection of the refund claim of Rs. 27,800/- and the interest, thereof, is correct and legal. The impugned order to that extent is upheld and that extent of the appeal is dismissed. 5.2 As regards the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amount along with interest, The Hon'ble High Court after hearing both sides came to the following conclusion:- "12 After hearing the learned Counsel for the parties, we find that the petitioner was entitled to the refund. However, as at present, it appears more equitable to order that the amount of Rs. 80,00,000/- along with interest, determined in accordance with the provisions of Section 11BB of the Central Excise Act, 1944, shall be credited to the Cenvat Account of the petitioner's unit at Baddi (Himachal Pradesh). The petitioner shall have the option to draw from that credit for meeting with its liability, if any, which may arise to make a deposit for the hearing of the appeal. The needful shall be done within one week from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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