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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 ..... the payment of pre-deposit and decided the appeal on merits. As such, the Department cannot turn back and dispute the nature of payment of pre-deposit while sanctioning the refund-claim. An amount of Rs.4,80,000/- was paid by the appellants in order to avail the remedy of appeal. The nature of payment as a pre-deposit would not undergo any change to become excess payment of tax as contended by the lower Adjudicating Authorities. This contention is totally unjustified and has to be termed as patently illegal. There cannot be any doubt as to the payment made being a pre-deposit may be vide their Head Quarter s Service Tax Registration at Chennai. In the case of SUVIDHE LTD. VERSUS UNION OF INDIA [ 1996 (2) TMI 136 - BOMBAY HIGH COURT] the Hon ble High Court of Bombay has held that in respect of pre-deposit made under Section 35F of Central Excise Act, 1944, the provisions of Section 11B of Act ibid can never be applicable. The amount paid by the appellant towards pre-deposit cannot be treated as an excess payment of duty and the provisions of Section 11B of the Central Excise Act, 1944 cannot be made applicable in the facts and circumstances of this case - the appellant is eligible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icorin. 2.6 However, the Deputy Commissioner has returned the refund claim vide letter dated 14.08.2020 and instructed the appellant to file a refund claim before the Egmore Division of Chennai North Commissionerate. Thus, the appellant has filed a refund claim on 13.04.2021 before the Assistant Commissioner of GST CE, Egmore Division, Chennai. 2.7 But, a Show Cause Notice dated 12.07.2021 was issued to the appellant to show cause as to why the refund claim should not be rejected on the ground of limitation. The appellant filed a reply and explained their case during the personal hearing. 2.8 The Assistant Commissioner, Egmore Division in Order-in-Original No. 1/2022(RF) dated 01.03.2022 has rejected the refund claim on the ground of limitation under section 11B of CEA, 1944. Then, the appellant preferred an appeal but the same was rejected by the Commissioner (Appeals) in Order-in-Appeal No. 54/2023(CTA-I) dated 24.02.2023. Hence this appeal was filed before this Tribunal. 3.1 The Ld. Counsel Shri M. Kannan has appeared and argued on behalf of the appellant. The submissions of the appellant are summarised as given below:- i. It is submitted that an appeal was filed before the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i M. Kannan has argued that, if the Department is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. In this regard the appellant has relied upon the following Judgment. 3E Infotech Vs CESTAT Chennai [2018 (18) GSTL 410 (Mad.)] 3.2 He has lastly prayed for setting aside the Order-in-Appeal No. 54/2023 (CTA-I) dated 24.02.2023 of Commissioner of GST and Central Excise (Appeals-I), Chennai and allow the appeal. 4. Per Contra, the Ld. Authorised Representative Shri Harendra Singh Pal has affirmed the findings of the lower Adjudicating Authorities. He has submitted that pre-deposit amount of Rs.4,80,000/- paid by the appellant has to be treated as an excess payment of duty and so the provisions of Section 11B of the Central Excise Act, 1944 would be applicable. He has argued that the refund-claim filed belatedly cannot be entertained as being hit by limitation. 5. Heard both sides and considered the submissions and grounds advanced as evident from the facts in this appeal. 6. The only issue that has to be decided in this appeal is whether the refund-claim of Rs.4,80,000/- paid by the appellant s Chenn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above payment. The Commissioner of GST and Central Excise (Appeals), Madurai has accepted the above said payment of the pre-deposit and heard the appellant and passed the Order-in-Appeal No. 67/2020 dated 29.05.2020 remanding the matter to the lower Adjudicating Authority who has returned the refund-claim instructing the appellant to file a refund-claim before the Egmore Division, Chennai. Thus, there is no dispute that the above payment of Rs.4,80,000/- was towards pre-deposit in connection with the appeal filed by the appellant before the Commissioner of GST and Central Excise, Madurai. 13. It has to be observed that the lower Adjudicating Authority at Chennai has treated this amount not as a pre-deposit but as an excess payment of Service Tax as the pre-deposit was paid under Head Quarter s Service Tax Registration at Chennai. 14. The Ld. Advocate has submitted the dates and events in the appeal as follows:- S. No Date EVENTS 1. 08.03.2019 Order-in-Original No. 11/JC/ST/2019 passed by the Joint Commissioner of GST CE, Tirunelveli, confirming the demand of Rs. 63 89 431 -. 2. 28.02.2020 7.5% of pre-deposit of Rs. 4,80,000/- paid (under Chennai Registration No. AABCB5758JSE00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... datory pre-deposit. Since the appellant had complied with the mandatory provisions of Section 35F of Central Excise Act, 1944 made applicable to Service tax matters, the appeal is examined on merits. 16. From the above, it is clear that the Commissioner (Appeals) has accepted the payment of pre-deposit and decided the appeal on merits. As such, the Department cannot turn back and dispute the nature of payment of pre-deposit while sanctioning the refund-claim. An amount of Rs.4,80,000/- was paid by the appellants in order to avail the remedy of appeal. The nature of payment as a pre-deposit would not undergo any change to become excess payment of tax as contended by the lower Adjudicating Authorities. This contention is totally unjustified and has to be termed as patently illegal. There cannot be any doubt as to the payment made being a pre-deposit may be vide their Head Quarter s Service Tax Registration at Chennai. In the case of Suvidhe Ltd. Vs. Union of India [1996 (82) ELT 177 (Bom.)] the Hon ble High Court of Bombay has held that in respect of pre-deposit made under Section 35F of Central Excise Act, 1944, the provisions of Section 11B of Act ibid can never be applicable, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not arise. As pointed out in the circular dated 2-1-2002, when the claim can be made even by a simple letter along with attested xerox copy of the order in appeal, the question of the Department further adjudicating the matter invoking Section 11A of the Act, hence, does not arise. The Circulars of the Board are binding on the respondents who have the responsibility of respecting the same. More so, in the context of the decision of the Apex Court, the question of re-agitating the issue now does not arise. In the circumstances, accepting the case of the petitioner, the writ petitions are allowed. The respondents are directed to refund the amount within a period of eight weeks from the date of order along with interest at 6% per annum from the date of receipt of the order till the date of payment. No costs. Consequently, M.P. Nos. 1 and 1 of 2010 are closed. 18. In view of the above findings and in compliance to judicial discipline and appreciating the decisions cited supra, I am of the considered view that the amount paid by the appellant towards pre-deposit cannot be treated as an excess payment of duty and the provisions of Section 11B of the Central Excise Act, 1944 cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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