2018 (6) TMI 582

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....LA, the same is refundable to the assessee. In the case in hand, the assessee paid duty along with education cess and higher education cess and took self credit of the same which was initially allowed. Later on, it was revealed by the Revenue that the assessee is not entitled to claim self credit of education cess and higher education cess, therefore, the proceedings were initiated against the assessee by way of issuance of the show cause notice. The matter was adjudicated and it was held that the assessee is not entitled to take self credit of education cess and higher education cess. Consequently, the demand on that account was confirmed along with interest and penalty was also imposed. The assessee paid the entire amount of demand along ....

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....such provisions in Section 11B of the Central Excise Act, 1944 and took support of the decision of this Tribunal in the case of Ajay Exports reported in 2016 (335) ELT 150 (Tri. Mum.), Saranga Agarwal reported in 2010 (258) ELT 461 (Tri. Chennai), Vijay Enterprises reported in 2009 (233) ELT 366 (Tri. Ahmd.). 5. In rebutted to the arguments advanced by the AR, the Ld. Counsel for the assessee drew my attention to the CBEC Circular No. 802/35/2004-CX dated 08.12.2004 and also submitted that while the decision relied upon by the ld. AR is not relevant to the facts of this case. As in these cases, this Tribunal has not considered the decision of the Hon'ble Apex Court in the case of Madura Coats Ltd. reported in 2014 (301) ELT 161 (SC). Mor....

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.... deposit the amount as a precondition for hearing the appeal. The issue that arises for determination in the present appeal is as to whether or not the amount paid voluntarily after the order of the adjudicating authority, pending the appeal before the appellate authority is to be treated to be a deposit made under Section 35F of the Act. 5. The controversy involved in the present appeal is no longer res integra inasmuch as, this Court in the case of Commissioner of Customs (Preventive) v. Ghaziabad Ship Breakers Ltd. vide judgment and order dated 7-10-2010 rendered in Tax Appeal No. 2042 of 2009 [2010 (259) E.L.T. 522 (Guj.)], in the context of the provisions of Section 129E of the Customs Act, 1962 which are in pari materia with ....

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.... of the order that may be passed by the Commissioner (Appeals) or the Appellate Tribunal. Thus, the contention that it is only the payment made pursuant to any order of any appellate authority or judicial forum under section 129E or section 131 of the Act which would fall within the ambit of predeposit under the said provision is fallacious and contrary to the provisions of the section itself and as such does not merit acceptance." 6. The court accordingly held that any amount deposited during the pendency of an appeal would be by way of predeposit under Section 129E of the Customs Act and has to be treated accordingly. The controversy in issue in the present appeal, therefore, stands concluded against the revenue, by the said deci....