2012 (12) TMI 713

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....der-in-Appeal No.45/Commr (A)/JMN/2011, dt.05.07.2011. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding rejection of refund claim of Rs.50,000/- which was paid by the appellant on receipt of Order-in-Original No.07/Addl.Commrr/2009, dt.07.12.2009. After paying the amount, the appellant preferred an appeal before the first appellate authority and the fi....

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.... his submission that the amount has been deposited by the appellant consequent to the Order-in-Original and has availed the right of appeal against such an order and the amount deposited by the appellant cannot be considered as duty, interest or penalty, but has to be considered as amount deposited for hearing and disposing the appeal. It is his submission that reliance placed by the ld. adjudicat....

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....-placed. 5. Ld.D.R. reiterates the findings of both the lower authorities. 6. After considering the submissions made by both sides, I find that the issue in this case lies in narrow compass inasmuch as the appellant herein had paid/deposited the amount of penalty exercising his right of appeal, in which he succeeded. Revenue authorities should have granted him the refund of said amount. At the s....

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..... No evidence has been produced before me to controvert this evidence cited by the adjudicating authority, or not any affidavit has been filed to state that the refund of penalty amount in question here was actually borne by the appellant and not by any other person. In such scenario, I find that the respondent has actually passed on the incidence of penalty to other person and doctrine of unjust ....