2022 (6) TMI 674

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....roposal was accepted vide Order-in-Original dated 31.03.2012. Commissioner (Appeals) had upheld the said order on 29.11.2013. An appeal against the said order in appeal was filed before this Tribunal. Meanwhile, the appellant had deposited the amount of Rs.274997/- vide the challan dated 17.11.2015. During the initial stage of said appeal vide an Interim Order dated 12.01.2016, the said amount was held to be an amount as deposited under section 35 F of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 (the amount of pre-deposit). The said appeal was finally allowed vide Final Order No.52537/2018 dated 18.07.2018. Pursuant to said order that the appellant filed an application dated 12.03.2019 seeking refund of the aforesaid ....

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.... Del.) 4. Per contra, ld. D.R. has relied upon the order in appeal, specifically to the findings in paragraph 7.1 and 7.2. The appeal is accordingly, prayed to be dismissed. 5. After hearing the rival contentions and perusing the record, it is observed that the refund claim of the appellant has been rejected on two counts. (i) That the amount was actually deposited on the behest of recovery notice of the Department. (ii) In terms of section 12 B of Central Excise Act a presumption of law exists about every person who has paid the duty on excise on any goods shall be deemed to have passed on the full incidents of such duty to the buyers of such goods. 6. To appreciate these findings, the correctness thereof, follow....

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....ive per cent. and not exceeding thirty-six per cent. per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such amount from the date of payment of the amount till, the date of refund of such amount. Provided that the amount deposited under section 35F, prior to the commencement of the Finance (No. 2) Act, 2014, shall continue to be governed by the provisions of Section 35FF as it stood before the commencement of the said Act. 8. In addition, the Circulars as relied upon by the appellant are Department's own document. With respect to refund of pre-deposit, the Department is also conscious as follows:- "26. Refund of pre-deposits:-(i) Where the appeal is decided in....

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....lant, the question of invoking presumption of section 12 B of Central Excise Act about passing of the incidence of such amount does not at all arise. Section 12B can be invoked if and only if the amount in question is an amount of duty. As already held by this Tribunal during the first round of litigation vide Final Order No.52537/2018 dated 18.07.2018 that the appellant was not liable to pay the amount for which the reversal was proposed vide the earlier Show Cause Notice. The amount was not the amount of duty. It has been held to be an amount of pre-deposit vide Order dated 12th January, 2016. Accordingly, I am of the opinion that section 12B has wrongly been invoked by Commissioner (Appeals). He is also observed to have failed to appreci....