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TMI Blog2024 (11) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... n 07.05.2021 which has been received by the Revenue on 15.06.2021, therefore, the claim is barred by limitation as per the provisions of the Section 11B of the Central Excise Act, 1944. Hence, the Commissioner (Appeals) has rightly held that pre-deposit amount of 7.5% of Rs.16,97,430/- is only eligible as refund. Whether notice is to be issued before rejecting any refund claim as claimed by the appellant? - In the instant case, the appellant had made his claim only on the ground that the entire amount is to be considered as pre-deposit under 35FF of the Central Excise Act 1944. The appellant appeared before the Original Authority for the personal hearing held on 18.08.2021 and had filed written submissions 18.08.2021 which was taken on record. The order was passed taking into consideration the submissions made by the appellant. As rightly observed the Commissioner (Appeals), there is no violation of principles of natural justice as claimed by the appellant. - HON'BLE MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Mr. J.J. Fernandes, Advocate for the Appellant Mr. Maneesh Akhoury, Asst. Commissioner (AR) for the Respondent ORDER PER: R. BHAGYA DEVI This appeal is being filed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anctity of law as the same is not duty or tax and accordingly, the same should be returned and cannot be processed under the provisions of Section 11B of the Central Excise Act, 1944. It is also submitted that in the case of SSK Security vs. Commissioner of Central Tax, Belagavi vide Final Order No. 20094/2022 dated 18.03.2022, the Hon ble Tribunal relying on the decision of the Hon ble High Court in the case of CCE, Bangalore vs. KVR Constructions: 2012 (26) STR 195 (Kar.) and in the case of Way2Wealth Brokers Pvt. Ltd. vs. CCT, Bengaluru: 2021-TIOL-1969-KAR-ST held that In view of the above clear ratio, I am of the view that both rejection and retention or without authority of law and hence they impugned order is set aside. Appeal is allowed with consequential relief, if any, as per law . He also relied on the decision in the case of the Tribunal in the case of M/s. Churchit International vs. Commissioner of Customs (Export), New Delhi vide Final Order No.58537/2024 dated 06.09.2024. He also relied on the following decisions: i. M/s. Ramadas vs. Joint Commissioner of Central Excise Puducherry: 2021 (44) GSTL 258 (Mad.) ii. M/s. Supreme Industries Ltd. vs. The CBIC Others: 2021 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. 99. .Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date on which appeal is filed, to the extent of 7.5% or 10%, subject to the limit of Rs. 10 crores, can be considered to be deposit made towards fulfillment of stipulation under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. Any shortfall from the amount stipulated under these sections shall have to be paid before filing of appeal before the appellate authority. As a corollary, amounts paid over and above the amounts stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, shall not be treated as deposit under the said sections. 3.2 Since the amount paid during investigation/audit takes the colour of deposit under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 only when the appeal is filed, the date of filing of appeal shall be deemed to be the date of deposit made in terms of the said sections. 3.3 In case of any short-payment or non-payment of the amount stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, the appeal filed by the appellant is liable for rejection. 5. Refund of pre-deposit : 5.1 Where the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited along with interest at the rate specified. 7.2 Record of deposits made under Section 35F of the Central Excise Act, 1944 or section 129E of the Customs Act, 1962 should be maintained by the Commissionerate so as to facilitate seamless verification of the deposits at the time of processing the refund claims made in case of favourable order from the Appellate Authority. Circular No. 1053/2/2017-CX., dated 10-3-2017 26. Refund of pre-deposits : (i) 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. (ii) 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any, paid on such duty]. (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person : [Explanation. For the purposes of this section, - (B) relevant date means, - . [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] In the present case, the refund arose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... address such objections raised. This is the basis of the fundamental Principles of Natural Justice. In cases where the consequential demand traverses beyond the scope of the show cause notice, it would be deemed that no show cause notice has been given, for that particular demand for which a proposal has not been made. 12. Thus, as rightly pointed out by the Learned Counsel for the petitioner, the impugned adjudication order cannot be sustained, since it traverses beyond the scope of the show cause notice and is also vague and without any details. Accordingly, such an adjudication order without a proposal and made in pursuant of a vague show cause notice cannot be sustained . In the instant case, the appellant had made his claim only on the ground that the entire amount is to be considered as pre-deposit under 35FF of the Central Excise Act 1944. The appellant appeared before the Original Authority for the personal hearing held on 18.08.2021 and had filed written submissions 18.08.2021 which was taken on record. The order was passed taking into consideration the submissions made by the appellant. As rightly observed the Commissioner (Appeals), there is no violation of principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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