2021 (4) TMI 851

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....sequent availment of DEPB. During the investigation, the appellant deposited Rs. 25 lakhs. Show cause notice was issued alleging inter alia undue availment of DEPB. After adjudication, original authority dropped the proceedings vide order dt. 31.10.2017. Thereafter appellants filed a refund claim of Rs. 25 lakhs on 04.01.2018. The refund sanctioning authority allowed the refund but however did not grant any interest. Aggrieved by the denial of interest appellants filed appeal before the Commissioner (Appeals). The department also filed cross objections in the said appeal. Vide order impugned herein the Commissioner (Appeals) set aside the sanction of refund holding that the said amount is paid as duty and that the refund ought to be conside....

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....d to sanction of refund was put forward by the department. It is also submitted by her that the department has so far not issued any SCN for recovery of erroneous refund. She relied upon the decision in the case of Lanvin Synthetics Pvt. Ltd. Vs CCE - 2020 (374) ELT 759 (Tri.-Mum.) to argue that when there is no demand confirmed and amount is deposited during the investigation, the same cannot attain the colour and character of duty element. She prayed for allowing the appeal. 3. Ld.A.R Shri S. Balakumar reiterated the findings in the impugned order. 4. Heard both sides. 5. At the outset, it has to be stated that department has not filed any appeal against the order passed by the original authority sanctioning the refund of Rs. 25 ....