TaxTMI 
TaxTMI 
2022 (11) TMI 859
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....the duty amounting to Rs.6,51,66,787/- was demanded from the appellant alleging the evasion of Central Excise duty by way of suppression of receipt of raw material, of actual production leading to clandestine clearance of their final product. Pursuant thereto the appellant deposited Rs. 56,75,000/- voluntarily (Rs.15,00,000/- from Cenvat Credit account and Rs. 41,75,000/- as cash). Being aggrieved of the said show cause notice dated 4.09.2015 the application before Settlement Commission New Delhi was filed in terms of Section 32 E of Central Excise Act, 1944. The said application was rejected vide Final Order No. 3509-3510/CE/2019-R dated 30.04.2019 and the matter was sent back to the Adjudicating Authority. The appellant also deposited Rs.....
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....confirmed and the refund claim has been rejected by the Original Adjudicating Authority vide Order-in-Original No. 11/2020-21 dated 24.09.2020. The appeal thereof has been rejected vide Order-in-Appeal No. 146/2021 dated 22.12.2021. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Shri B L Yadav, learned Counsel for the Appellant and Shri Ishwar Charan, learned Authorised Representative for the Department. 4. Learned Counsel for the appellant submitted that refund claim has wrongly been held to be barred by time. Reliance has been placed on the decisions of Hon'ble High Court of Punjab and Haryana in the case of Schlumberger Solutions Pvt. Ltd. reported as [2021 (12) TMI 184 (P&H)] wherein it was held that where....
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....llegal deposit with the Government. Same is liable to be refunded to the appellant. The refund therefore, has wrongly been rejected. Learned Counsel has prayed that the order of Commissioner (Appeals) be set aside and the appeal be allowed. 5. While rebutting these submissions, learned authorised representative has mentioned that the appellant had applied under SVLDR Scheme, one time measure for recalculation of pending dispute of Excise and Service tax. The SVLDR Scheme Form No. 3 was issued to the appellant pursuant to provision of section 124(2) read with section 130 (2) of Finance Act, 2019. The amount in question is not at all refundable. In addition, the refund was to be claimed within one year from the date of deposit. Application....
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....ble. It was specifically mentioned therein that amount of Rs. 17,38,023/- is not verified as duty but as interest. (vii) The aforesaid amount of Rs.2,50,74,186/- stand deposited by the appellant on 30.6.2020. 7. The aforesaid observations and undisputed facts reveal that the amount of Rs.17,38,023/- deposited by the appellant as interest continued to be deposited with the Department over and above the final estimation of his duty liability under SVLDR Scheme. I further observe that the Adjudicating Authority have rejected the refund claim on the ground that the amount of interest cannot be called as tax dues in terms of section 123 of SVLDR Scheme / Finance Act, 2019 and same is otherwise not refundable in terms of proviso to se....
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....lculated to arrive at estimated amount payable. As apparent from the SVLDR Scheme Form No.3, admittedly the amount of impugned refund has not been deducted while calculating the estimated amount payable by the appellant. It is well settled principle well enshrined under Constitution of India itself Article 362 that no tax can be collected without validity of law. Since the appellant has paid the entire estimated amount payable amount of Rs.17,38,023/- becomes such a deposit with the department for which the Department of Revenue had not authority to retain. The Adjudicating Authority below have relied upon the proviso (B) to section 124(2), of Finance Act, 2019 which is as follows:- "(B) Provided that if the amount of pre deposit o....
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.... adjudication stage nor at the stage of settlement under SVLDR Scheme, the said amount is the amount lying with the Department as Revenue deposit. The same has to be refunded. It was also held in this decision that the limitation as provided under section 11 B of Central Excise Act, 1944 is also not applicable to such Revenue deposit. The issue of time bar in the case of Revenue deposits has also been considered by Hon'ble Apex Court in the case of Sandvik Asia Ltd. reported as [2006 (196) ELT 257 (SC)] holding the assessee entitled for interest along with the refund of the amount which he was not liable to pay to the Department. 13. I also draw support from the decision in the case of M/s. Parle Agro Pvt. Ltd. vs CGST, NOIDA reported as....