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TMI Blog2024 (4) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... er Notification No. 41/2012-ST dated 29.06.2012 for the services used in export of the goods and the same were sanctioned. 2.3 While so, a Show Cause Notice No. 02/2021(RF) dated 12.07.2021 was issued for recovery of erroneous refund of Rs.63,89,431/- and the Joint Commissioner of GST & CE, Tirunelveli vide Order-in-Original No. 11/JC/ST/2019 dated 08.03.2019 has confirmed the demand of Rs.63,89,431/- along with interest and imposed penalty as there was allegation of illegal mining against the appellants and for the reason that these exports being not covered by valid transit permits given by the State Mining Department. 2.4 The appellant has filed an appeal against the above said Order-in-Original before the Commissioner (Appeals), Madurai. While filing the appeal, the appellant has paid an amount of pre-deposit of Rs.4,80,000/- on 28.02.2020 under Chennai registration No. AABCB5758JSE002, due to a technical issue as they could not generate the required Challan for Service Tax Registration number of Tuticorin Division, Tirunelveli. 2.5 The Commissioner (Appeals), Madurai in Order-in-Appeal No. 67/2020 dated 29.05.2020 has set aside the Order-in-original and remanded the case to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pre-deposit was made in terms of Section 35F of the Act and so, the question of invoking Section 11B of the Act to reject the claim of the petitioner as time-barred, does not arise. Further, he has referred to the decision in the case of Estee Auto Pressings (P) Ltd. Vs. Commissioner of Central Excise, Chennai II [2017 (346) ELT 72 (Mad.)]. v. It was further put forth that, even assuming but not admitting that the payment of pre-deposit as excess payment, the refund claim is not time barred in the light of the order dated 10.01.2022 passed by the Hon'ble Supreme court on account of COVID situation in the country and the said order is reported in 2022 (56) G.S.T.L. 385 (S.C.) and the relevant para is reproduced below:- "In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply." vi. The above said order of the Hon'ble Supreme Court has been followed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unit registered under the jurisdiction of Tuticorin Division. But the Challan dated 28.02.2020, evidencing payment of the above pre-deposit was generated under the Registration number of Head Office in Chennai i.e, with the Service Tax Registration No. AABCB5758JSE002. 10. The above refund claim was rejected by the lower Adjudicating Authority at Tuticorin as the Challan dated 28.02.2020 pertains to Service Tax Registration in Chennai. He was advised to file a refund-claim with the Chennai Commissionerate as the payment of pre-deposit was made vide their Head Quarters, Chennai Service Tax Registration number. However, the Adjudicating Authority in Chennai Commissionerate has treated this payment as an excess payment of Service Tax. As the claim was filed on 13.04.2021, he has rejected the appellant's refund as hit by limitation of time under Section 11B of the Central Excise Act, 1944. 11. As such, the main point for examination is whether the amount paid by the appellant from their Head Office Registration can be treated as a pre-deposit or not? 12. The payment of pre-deposit is mandatory for filing an appeal by the appellant Unit in Tuticorin which has got a separate registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the O.I.A No. 54/2023 the appellant has filed the present appeal before this Hon'ble Tribunal. 15. From the above, it is clear that the appellant was made to file a refund-claim before the Assistant Commissioner of GST and Central Excise, Egmore Division, Chennai who has treated the pre-deposit amount as excess payment of tax and rejected the refund-claim as being hit by limitation in terms of provisions of Section 11B of the Central Excise Act, 1944. The appellant's contention that the Commissioner (Appeals), Madurai has accepted the above pre-deposit for the purpose of hearing the appeal filed by the appellant has fallen on deaf ears. In Paragraph 5 of the Order-in-Appeal No. 67/2020 dated 29.05.2023, the lower Appellate Authority Madurai has observed as follows:- "5. I have carefully gone through the records of the case and considered the written submission of the appellant and also the provisions of law relating to the subject matter. As per Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, Commissioner (Appeals) shall not entertain any appeal unless the appellant had deposited 7.5% of the duty, in the case of where duty or du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is thoroughly dishonest and baseless. In respect of a deposit made under Section 35F, provisions of Section 11B can never be applicable. A deposit under Section 35F is not a payment of Duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief. 3. In respect of such a deposit the doctrine of unjust enrichment will be inapplicable. In the circumstances, the petition succeeds. The impugned show cause notice, which is annexed at Exhibit-F to the petition, is quashed and the respondents are directed to forthwith refund the aforesaid amount of Rs. 14,07,410/- alongwith interest thereon at the rate of 15% p.a. from the date of the order of the Appellate Tribunal i.e. from 30th November, 1993 till payment. 4. Rule is made absolute in the aforestated terms. Respondents will pay the petitioners the cost of the petition." The above decision has been affirmed by the Hon'ble Supreme Court in the case Union Vs. Suvidhe Ltd. [1997 (94) ELT A159 (SC)]. 17. Further, in the case of Estee Auto Pressings (P) Ltd. Vs. Commissioner of Central Excise, Chennai-II [2017 (346) ELT 72 (Mad.)], the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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