TaxTMI 
TaxTMI 
2021 (9) TMI 28
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....cause notices were issued demanding the service tax totalling to Rs. 47,17,804/- for three different periods i.e. 2008-2009, 2009-2010 and 2010-2011. The said demand was confirmed along with interest and penalties vide the Order-in-Original dated 27.6.2013. The appeal thereof was rejected vide Order-in-Appeal dated 03.02.2014. The appellant approached this Tribunal assailing the said Order-in-Appeal. However, vide Final Order dated 15.3.2016, the appellant was directed to deposit Rs. 15 lakhs as pre-deposit. The Hon'ble High Court of Delhi was moved by the appellant against this Final Order. On 1.6.2016. Hon'ble High Court of Delhi held that since the appellant has already deposited Rs. 9.32 lakh, only Rs. 5.77 lakh was to be deposited. Sam....
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....dication vide its Order dated 20.11.2017. Since the appeal for which the said pre-deposit was made stand decided, the appellants had rightly moved the claim of refund of the said amount. The adjudication on merits in compliance of the said order of remand has not yet been finalised. Hence, three of the show cause notices proposing the recovery of duty from the appellant are still unadjudicated. The amount of pre-deposit cannot be adjusted against the proposal of said show cause notices. Addition of the amount of Rs. 9.3 lakh which was paid during investigation was not appropriated even under the show cause notice. The order under challenge being passed in total violation of law and ignorance of Circular No. 984/8/2014 dated 16.9.2014 is all....
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....pellant during the pendency of his Civil Miscellaneous Application before the Delhi High Court i.e. on 16.5.2016. 6. Both these amounts ( Rs. 9.23 lakh and Rs. 5.77 lakh) admittedly is an amount toward pre-deposit as was made by filing the appeal before this Tribunal. 7. The said appeal stands allowed by way of remand vide the Final Order of this Tribunal dated 20.11.2017. These admissions are sufficient to hold two things: 1. Appellant is entitled to refund of said amount of pre-deposit (Rs. 15 lakh in terms of section 129 E of the Customs Act. 2. Three of said show cause notices are still pending adjudication since the remedy of appeal has already been availed by the appellant. Recovery of demand confirmed by the Commissioner (Appea....
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....mposed under different provisions of the Act, the pre-deposit would be calculated based on the aggregate of all penalties imposed in the order against which appeal is proposed to be filed. 2.3 In case of any short payment or non-payment of the amount stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, the appeal filed is liable for rejection. 3. Payment made during investigation: 3.1 Payment made during the course of investigation or audit, prior to the date on which appeal is filed, to the extent of 7.5% or 10%, subject to the limit of Rs. 10 crores, can be considered to be deposit made towards fulfillment of stipulation under Section 35F of the Central Excise Act, 1944 or Section 12....
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.... at the specified rate, from the date duty became payable, till the date of payment. 5. Refund of pre-deposit: 5.1 Where the appeal is decided in favour of the party / assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matt....