TaxTMI 
TaxTMI 
2020 (1) TMI 1060
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....nto the factory, the appellant is availing the CENVAT credit of duty paid on the said goods in terms of Rule 16 of the Central Excise Rules, 2002. The returned final products could not be re-processed/refined/re-conditioned as such and hence the said returned goods are re-melted and used along with regular manufacturing batch to obtain fresh final products and the said final products are once again cleared on payment of duty in terms of the provisions of the Central Excise Act, 1944. The Department initiated proceedings against the appellant by way of issuance of SCN dated 29.10.2009 proposing to deny the CENVAT credit of Rs. 4,22,065/- availed on the rejected goods for the period October, 2007 to October 2008 in terms of Rule 16 of the Central Excise Rules, 2002 apart from proposing to demand interest and imposed penalty. After following the due process, the Deputy Commissioner vide OIO dated 31.12.2010 confirmed the demand of Rs. 4,22,065/- under Section 11A of the Central Excise Act, 1944 along with interest under Section 11AB and equal penalty under Section 11AC. The appellant was issued another SCN dated 26.11.2009 proposing to deny the CENVAT credit of Rs. 42,291/- availed on....
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....hence the amount paid during the pendency of the appeal or at the time of filing of appeal should be treated as pre-deposit in terms of Section 35F of the Central Excise Act, 1944. He further submitted that the amount paid at the time of filing of appeal or during the pendency of appeal should be treated as pre-deposit in view of Section 35F of the Central Excise Act inasmuch as it is clear from the said provisions that it is mandatory on the part of the assessee to deposit the duty demanded and penalty imposed before filing an appeal. It is clear by virtue of proviso, the assessee is given an option to seek waiver from pre-deposit and it is a discretionary power given to the Appellate Authority who can exercise the same considering the prima facie case in dispute. Learned Counsel further submitted that any amount deposited at any time after adjudication should be treated as pre-deposit and consequently the period of limitation prescribed under Section 11B of the Central Excise Act has no application at all. In support of this submission, he relied upon the CBEC Circular No. 802/35/2004-CX dated 08.12.2004. He further submitted that the provisions of Section 11B of the Central Exci....
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.... the material on record, I find that after the OIO, the appellant paid the duty along with interest and 25% of the penalty and thereafter filed appeal before the Commissioner (A) in terms of Section 35 F of the CEA which during the relevant period provided that in order to file an appeal before the Appellate Authority, the assessee has to pay the duty, interest and penalties or seek waiver from the Appellate Authority. Further, I find that in the present case, instead of seeking waiver, the appellant paid the duty, interest and 25% penalty in terms of Section 35F and filed the appeal before the Commissioner (A) who finally allowed the appeal vide its Order dated 22.10.2013. Consequent to the allowing of the appeal of the Appellate Authority, the mandatory pre-deposit made by the appellant in terms of Section 35F of the Central Excise Act was required to be refunded by the Department to the appellant and the said amount was not refunded. Thereafter, the appellant wrote a letter dated 13.07.2017 claiming the amount paid by him at the time of filing the appeal before the Appellate Authority i.e. Commissioner (A). The Department instead of refunding the pre-deposit made by the appellan....
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....er from the person who has made such deposit, requesting the return of the amount, along with an attested xerox copy of the order-in-appeal or CEGAT order consequent to which the deposit made becomes returnable and an attested xerox copy of the Challan in Form TR 6 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. 4. The above instructions may be brought to the notice of the field formations with a request to comply with the directions and settle all the claims without any further delay. Any deviation and resultant liability to interest on delayed refunds shall be viewed strictly. 5. All the trade associations may be requested to bring the contents of this circula....
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....concerned officers. 6. All Commissioners may advise implementation of these instructions and ensure their implementation through a suitable monitoring mechanism. Field formation may be suitably informed. Copies of the instructions issued may be endorsed to this office for information. 7. Commissioners under your jurisdiction should be advised that similar matters pending in the High Courts must be withdrawn and compliance reported. The Board has also decided to implement the CESTAT Orders already passed for payment of interest and the interest payable shall be paid forthwith. 8. This issues with the approval of Chairman/Member (L&J), CBEC. 9. Kindly acknowledge receipt." 6.2. Further, I find that this issue of refund of pre-deposit under Section 35F was considered by the Hon'ble Bombay High Court in the case of Nelco Ltd. Vs UOI cited supra wherein the Hon'ble High Court has held that for refund of mandatory pre-deposit in terms of Section 35F, Section 11B of the Central Excise Act is not applicable. This judgment of the Bombay High Court has been upheld by the Hon'ble Supreme Court by dismissing the appeal of the Revenue as observed in the Ci....