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TMI Blog2024 (11) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... ty but only a pre-deposit for availing the right of appeal and such amount is bound to be refunded when the appeal is allowed with consequential relief. The impugned order is unsustainable and is hereby set aside. The appellant is entitled to refund of Rs.70,400/- along with interest @6% from the date of deposit till the date of actual refund is made. The Department is directed to release the amount within a period of 4 weeks. - HON BLE MS. BINU TAMTA, MEMBER (JUDICIAL) Ms. Parul Sachdeva, Advocate for the appellant Shri Rohit Issar, Authorised Representative for the respondent ORDER BINU TAMTA : 1. The appellant is aggrieved by rejection of the refund claim filed by them pursuant to the Final Order No.50780/2019 dated 01.05.2019, whereby the demand of duty confirmed by the Authorities below was set aside and the appeal filed by the appellant was allowed with consequential benefit, if any. 2. The appellant is engaged in service of Clearing and Forwarding (C F). A dispute had arisen regarding the inclusion of certain reimbursement expenses such as freight, stationery, printing charges, telephone charges, asset hire, courier, insurance and other taxes while providing Clearing and F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with consequential benefits. 5. In terms of the aforesaid final order of the Tribunal, which remained un-challenged by the Revenue, the appellant made an application for refund dated 04.09.2020 claiming refund of Rs.70,400/- as deposited vide challan no.00213 dated 16.10.2018 of Rs.52,800/- and vide challan no.00121 dated 17.10.2018 of Rs.17,600/- along with interest @6% to be computed from the date of deposit to the date of refund in terms of Section 35 FF of the Central Excise Act, 1944 read with Circular No.984/08/2014-CX dated 16.09.2014. The said application has been rejected by the Adjudicating Authority vide order dated 20.10.2020 holding that the amount deposited prior to the date of the stay order dated 8.2.2019 of Rs.52,800/- + Rs.17,600/- totalling Rs.70,400/- is in fact the payment of service tax under the category of C F Agents of earlier period. The appeal preferred by the appellant has also been rejected on similar grounds, though surprisingly the Commissioner (Appeals) categorically taking note of the observations made by the Hon ble CESTAT at para7 of its Misc. Order No.50169/2019 dated 18.02.2019 held that :- Once the Hon ble CESTAT has considered the amount dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs (CBIC) that the pre-deposit for filing the appeal is not payment of duty. The relevant paras are quoted below, which are self-explanatory:- 5. Refund of pre-deposit 5.1 Where the appeal is decided in favour of the party/assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it would deny the benefit of interest upon amounts which never bore the character of tax. * Order dated September 26, 2018 passed in W. P. (C) No. 11757/2016. 4. This court is of the opinion that the petitioners are entitled to relief in view of the consistent view taken in this regard by the courts. In Suvidhe Ltd. v. Union of India (1996) 82 ELT 177 (Bom), it was held that the amount paid as pre-deposit, for pursuing the appellate remedy or for any other reason mandated by law, cannot be treated as a tax as that is only a condition for pursuing the appellate remedy. This view was affirmed by the Supreme Court in Union of India v. Suvidhe Ltd. (2016) 11 SCC 808. In Nestle India Limited v. Asstt. Commissioner of C. Ex (2003) 154 ELT 567 (Kar) also, a similar view was adopted. The latest judgment of the Karnataka High Court in WS Retail Services Private Limited v. State of Karnataka [2018] 48 GSTR51 (Kar), W. P. (C) No. 33176/2017 and connected cases (decided on November 14, 2017) referred to all these decisions as well as the decision of this court in Voltas Limited v. Union of India (1999) 112 ELT 34 (Del). 5. We notice that recently in MRF Ltd. v. Commissioner of Trade and Taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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