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TMI Blog2024 (12) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... unt in question had been deposited by the respondent during the pendency of the appeal before the Supreme Court. In the circumstances, it is apparent that the amount so deposited would squarely fall within the ambit of Section 129-E of the Act and has to be treated as pre-deposit. Thus, the contention raised on behalf of the appellant that the amount has been paid by way of duty and not pre-deposit, being contrary to the provisions of section 129E of the Act, does not merit acceptance.' It is settled position in law that amount deposited for hearing of the appeal needs to be refunded to the appellant without going into any integrities of Section 11B. Thus, refund should have been granted alongwith the applicable interest to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the amount has been deposited by the appellant as directed by the CESTAT under Section 35F for consideration of the appeal filed by the appellant and would qualify as pre-deposit. Hon ble Gujarat High Court has in case of Ghaziabad Ship Breakers [2010 (259) E.L.T. 522 (Guj.)] observed as follows : 5. Considering the facts of the case as well as the submissions advanced by the learned counsel for the appellant, it appears that the main grievance ventilated in the appeal is that the amount paid by the respondent-assessee was towards the payment of duty and not by way of pre-deposit under Section 129-E of the Act and as such the respondent was liable to make an application for refund under Section 27 of the Act. For the purpose of deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, it is apparent that the same provides that a person desirous of appealing against an order relating to any duty or interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under the Act, is required to deposit the duty and interest demanded or penalty levied with the proper officer. Under the section such amount has to be paid by such person on his own and does not require any order to be passed before making such deposit. Deposit of the said amount is a pre-condition for entertaining the appeal. What is important to note is that the amount to be deposited before the appeal can be entertained on merits is nothing else but the amount of duty and/or interest, or penalty demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XV under the heading Appeals. Chapter XV of the Act is comprised of various provisions from Section 128 to Section 131C of the Act. Section 130 of the Act which provides for appeal to High Court and Section 130-E of the Act which provides for appeal in Supreme Court also fall under Chapter XV. Thus, an appeal before the Supreme Court would also be an appeal under the said Chapter as envisaged under Section 129E of the Act. Thus, any amount deposited during the pendency of an appeal before the High Court or the Supreme Court would also be by way of deposit under Section 129E of the Act and has to be treated accordingly. 9. Adverting to the facts of the present case, it is an undisputed position that the amount in question had been deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 favour of the appellant, refund along with interest would still be payable unless such order is stayed by a competent Appellate Authority. 5.4 In the event of a remand, refund of the pre-deposit shall be payable along with interest. 5.5 In case of partial remand where a portion of the duty is confirmed, it may be ensured that the duty due to the Government on the portion of order in favour of the revenue is collected by adjusting the deposited amount along with interest. 5.6. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- is concerned, the said amount was paid by way of pre-deposit subsequent to passing of the Order-in-Original pending disposal of appeal as required under Section 35F of the Central Excise Act. As per Section 35FF, an assessee is entitled to refund by way of consequential relief on being successful in appeal. Section 35FF provides (as amended/substituted w.e.f. 6-8-2014) - Where any amount deposited by the appellant under Section 35F is required to be refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, fixed by the Central Government, by notification in the Official Gazette, on such amount from the date of payment of the amount, till the date of refund of such amount : ..... X X X X Extracts X X X X X X X X Extracts X X X X
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