TaxTMI 
TaxTMI 
2022 (9) TMI 7
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....Mining Corporation Ltd. Acting on an intelligence that the inquiry was initiated by Directorate of Central Excise Intelligence Regional Unit, Indore and it was observed that the appellants have provided taxable service since 1st June, 2007 to 31st March, 2011 at Megnagar Mines of the aforementioned Corporation. However, they neither got themselves registered nor have discharged their service tax liability for the aforementioned period. Accordingly, vide Show Cause Notice No.1301 dated 03.10.2012 Service tax for an amount of Rs.68,63,937/- was proposed to be recovered from the appellants for providing taxable mining services. The said proposal was initially confirmed vide Order-in-Original dated 07.07.2014. Being aggrieved of the said order ....
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....nct proceeding from any proceeding with respect to the duty demand from the assessee. It is submitted that Commissioner (Appeals) has wrongly upheld the order of appropriation of the amount of refund of pre-deposit amount against the duty as has been confirmed for the normal period of impugned Show Cause Notice. Various Circulars have been relied upon by the ld. Counsel for the appellant to impress upon, the said submissions and also to impress upon the mandate for refunding the amount of deposits made in terms of section 35 F of Central Excise Act that too within a period of three months from the date of the order of the final authority/ CESTAT. With these submissions, ld. Counsel has prayed for the order under challenge to be set aside an....
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....when the said OIO was set aside vide Final Order dated 14.11.2019, the Appellant was entitled to refund of the said amount. In view of this settled position I find that the adjudicating authority should have decided the issue without waiting for de novo adjudication order. I find that Board vide Circular no. 984/08/2014-CX dated 16.09.2014 has clarified that in case of partial confirmation of demand such adjustment can be made. However I have noted that the amount was not confirmed when refund application was filled by the appellant. The Board circular has directed field formation to adjust the amount and not to withhold the amount in anticipation of confirmed order. Due to lack of any order after de novo proceedings, I find that appellant ....
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.... cases will be viewed adversely and appropriate disciplinary action will be initiated against the concerned defaulting officers. All concerned are requested to note that default will entail an interest liability, if such liability accrues by reason of any orders of the CESTAT/ Court, such orders will have to be complied with and it may be recoverable from the concerned officers." 2. Circular No.1053/02/2017-CX (F.No.96/I/2017-CX.I) dated 10.03.2017 wherein it is mentioned as follows:- Master Circular on Show Cause Notice, Adjudication and Recovery. "26. Refund of pre-deposits: (i) 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 prescrib....
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.... as follows:- "Sub.:-Recovery of confirmed demand during pendency of stay application - regarding Sl. No. Appellate Authority Situation Directions regarding recovery 1. CESTAT Appeal filed without stay application against an Order in Original issued by the Commissioner Recovery to be initiated on filing of such an appeal, without waiting for the statutory 90 days period to be exhausted. 2. CESTAT Appeal filed with a stay application against an order in Original issued by the Commissioner. Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay , if any, whichever is earlier 3. NIL No appeal filed against an ....
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.... dismissed..." 7. The perusal of these Departmental clarifications and directions, are sufficient to hold that it was a mandate upon the Department to sanction the refund of amount as was deposited under Section 35F of Central Excise Act. The adjudicating authorities are held to have committed an error while adjusting the said amount to a confirmed duty demand. The Board circular No.984/08/2014 dated 16.09.2014 though has been relied upon, present being a case of partial confirmation of demand. The relevant para of said Circular is perused which reads as follows:- "In case of partial remand, where a portion of the duty is confirmed, it may be ensured that the duty due to the Government on the portion of order in favour of the revenue is ....