2020 (1) TMI 364

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....e appellant submits that the Tribunal in the stay order clearly stated that the amount of duty deposited by them is a sufficient deposit in terms of Section 35F, therefore, the refund is of pre-deposit made under Section 35F for which section 11B need not to be followed. He placed reliance on the following judgments: • Commr. of Customs vs J.M. Baxi & Co. 2011 (271) ELT 19 (Guj.) • Suvidhe Ltd. vs UOI 1996 (82) ELT 177 (Bom.) 2.1 He further referred to the Board Circular F.No. 275/37/2J-Cx. 8A dated 02.01.2002 whereby he submits that in case of refund of pre-deposit made under Section 35F, the refund application under Section 11B(i) of the Central Excise Act, 1944 need not to be insisted upon. A simple letter from the person who has made such deposit requesting the return of the amount along with attested zerox copy of the order or CEGAT Order consequent to which the deposit becomes returnable and an attested zerox copy of the challan in form TR-6 evidencing the demand of amount of such deposit addressed to concerned Assistant/Deputy Commissioner of Central Excise as Customs as the case may will suffice for the purpose. He prays for allowing the appeal.....

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....sit made becomes returnable and an attested Xerox copy of the Challan in Form TR6 evidencing the payment of the amount of such deposit, addressed to the concerned Assistant/Deputy Commissioner of Central Excise or Customs, as the case may be, will suffice for the purpose. All pending refund applications already made under the relevant provisions of the Indirect Tax Enactments for return of such deposits and which are pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be processed as such. Similarly, bank guarantees executed in lieu of cash deposits shall also be returned." 6. From the above clarification, it is clear that any amount which is paid under Section 35F no formal refund application under Section 11B is required, merely a letter claiming the refund is sufficient which the appellant has admittedly submitted within the time after the Tribunal's order dropping the demand. The very same issue has been considred by the Bombay High Court in the case of Suvidhe Ltd. (supra) wherein the Hon'ble High Court has passed the following order: "Heard parties. 2. Show cause notice issued by the Superintende....

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....questions : "[a] Whether the Tribunal committed error in treating the voluntary payment made by the respondent to avoid interest penalty, as pre-deposit under Section 35-F of the Central Excise Act, 1944 and accordingly, the refund of the same not subjected to the test of unjust enrichment? [b] Whether the Tribunal committed error in not following the decision of Hon'ble Supreme Court in the case reported at 2000 (120) E.L.T. 50 (S.C.) in the case of Union of India v. M/s. Raj Industries, squarely applicable in the facts of the case of voluntary payment by assessee and further erred in following the cases which were factually on different aspects?" 2. The respondent assessee is engaged in the business of Customs House Agent. In connection with the cenvat credit availed by it on input services, a show cause notice came to be issued to the assessee, which culminated into an order dated 24-8-2006 passed by the adjudicating authority disallowing cenvat credit of Rs. 4,80,440/- under Rule 14 of the Cenvat Credit Rules, 1944 and confirming the duty along with interest and penalty. The assessee paid a total amount of Rs. 5,80,367/- by way of T.R. Challan. Being ....

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.... directing the assessee to 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 the provisions of Section 35F of the Central Excise Act, 1944, has held thus : "On a plain reading of section 129E of the 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 int....