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TMI Blog2024 (5) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeal) has in his order referred to the decision of Hon ble Madras High Court decision in the case of Commissioner of C.Ex., Chennai-II Versus Ucal Fuel Systems Ltd. [ 2011 (9) TMI 903 - MADRAS HIGH COURT] allowed this finding. In the present case the appellant relevant date for refund claim would not be the date of payment but the date of the decision for Order-In-Original. As refund claim has been filed within time the order of Commissioner (Appeals) cannot be faulted with. Thus, we do not find any merits in this appeal filed by the revenue and dismiss the same. - ( P. K. CHOUDHARY ) MEMBER ( JUDICIAL ) And ( SANJIV SRIVASTAVA ) MEMBER ( TECHNICAL ) Shri Chandra Mohan Pathak, Advocate (written request) for the Appellant Shri Manish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not legal and proper. 3.1 When so ever this matter got fixed for hearing respondent filed an application for adjournment on the ground that the department has been split into two parts namely UP Jal Nigam (Gramin) UP Jal Nigam (Nagriya) and they will have to search for the documents, papers of the old period. They have been requesting for adjournment of more than 06 (six) months. 3.2 Today also Counsel for respondent submitted a letter seeking another eight-nine months time. Further in the same letter he has submitted that, respondent had deposited the said amount under protest and requested for rejection of Revenue s appeal. 3.3 As we find the issue is in narrow compass and this appeal can be taken up for decision exparte in terms of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount deposited by the appellant continues to remain as deposit without acquiring the character of tax without the same being appropriated against the tax liability. Commissioner (Appeal) has in his order referred to the decision of Hon ble Madras High Court decision in the case of Commissioner of C.Ex., Chennai-II Versus Ucal Fuel Systems Ltd. reported in 2007 (216) E.L.T. 370 (Tri.-Chennai) allowed this finding. The relevant para of Commissioner (Appeals) order is reproduced below for ready reference : - The Hon'ble High Court of judicature at Madras in the case of Commissioner of C. Ex., Chennai-II Versus Ucal Fuel Systems Ltd. [2014 (306) ELT. 26 (Mad.)] had held as below - Refund - Admissibility of - Amount paid dunng investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT and which order has attained finality. It is not the case of the respondents that the said deposit was voluntary or by way of self-assessment and which has been accepted by the respondents and in which case the respondents could perhaps have argued that the said deposit was voluntary and not refundable, as was the case in Commissioner of Income Tax, Bhopal v. Shelly Products, (2003) 5 SCC 461. On the contrary, the assessment done by the respondents and the demand raised in pursuance thereto, of Rs. 4,66,39,061/- and where against Rs. 2,38,00,000/- was adjusted, has been set aside in entirety and as of today there is no assessment which had attained finality assessing the liability of the petitioner to tax of Rs. 2,38,00,000/-. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it pre-deposit , when it was not deposited by way of pre-deposit but under protest, even before any demand was raised and while the petitioner was still being investigated against. Such deposits under protest, to ease the rigors which the Tax Authorities otherwise are entitled to impose, are not unknown and judicial notice has been taken thereof. However as long as the amount deposited is under protest and in which protest, as held in Mafatlal Industries Ltd. supra no grounds are required to be stated, no right thereto accrues in favour of the depositee till the depositee is held entitled in law thereto. Thus, the wrong nomenclature given by the petitioner to the deposit would not be a ground for allowing the respondents State to unduly enr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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