2008 (12) TMI 558

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....ates, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - Vide his impugned order Commissioner (Appeals) has allowed the Revenue's appeal filed before him by setting aside the order-in-original passed by the adjudicating authority vide which consequent refund was sanctioned to the assessee. As such, we are of the view that stay pet....

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....ith interest and also imposed equivalent penalty on the respondents and Rs. 1,00,000/- upon the Partner. The respondents had deposited duty amount before adjudication of the show cause notice. Being aggrieved with the impugned order, the respondents filed appeal before the Commissioner (Appeals), Vapi who set aside the OIO vide his OIA No. KU/56-57/Vapi/2006 dated 23-2-2006. Consequently, the Resp....

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....ot be said to be a pre-deposit in terms of Section 35F of Central Excise Act, 1944. The said payment made by the respondents can only be said to be voluntary payment of duty in terms of Section 11A(2B) of Central Excise Act, 1944 to save them from any further liability of interest. The respondents have also not argued against the above department's claim. Therefore on this point I agree with the a....

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....before adjudication and after the issuance of show cause notice, cannot be considered as pre-deposit. There are number of Tribunal decisions to the effect that deposit made even during the course of investigation, has to be treated as pre-deposit and are liable to be refunded on the success of litigation. Admittedly, the order-in-appeal passed by the Commissioner (Appeals) on 23-2-2006 stands acce....