TaxTMI 
TaxTMI 
2023 (1) TMI 741
X X X X Extracts X X X X
X X X X Extracts X X X X
.... construction services as being provided by the appellant were for the purpose of commerce and were therefore taxable. The demand was confirmed vide the Order-in-original dated 29.03.2013, however, for an amount of Rs.9423765/- alongwith the equal amount of penalty. The amount already deposited by the appellant i.e. an amount of Rs.20,19,000/- was also appropriated against the said confirmed demand. The said order was challenged before this Tribunal vide Final Order No.58238/2013 dated 14.11.2018. 2. The demand confirmed against the appellant alongwith the order of appropriation was set aside. It s thereafter that the applicant filed an application dated 06.10.2020 to claim the refund of Rs.19,34,552/- (deducting an amount of Rs.1,27,000/- as was deposited prior the initiation of investigation on 31.07.2008). However, vide Show Cause Notice No.189 dated 24.12.2020 the refund claim was proposed to be rejected for the reasons that the amount has not been deposited under protest by the claimants and that the amount was deposited prior the beginning of investigation on 31.07.2008. The said proposal has been confirmed vide Order-in-Original bearing No.04/2020-21/223 dated 03/02/2021 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he said section is not applicable to the impugned amount which is apparently a pre-deposit / a deposit. It is further impressed upon that even if the limitation has to be looked into the date reckoning for the same is not the Final Order of the CESAT dated 14/11/2018 but it is the date of the order of High Court passed pursuant to the Departmental Appeal against the aforesaid Final Order of 14.11.2018 which shall be the relevant date. The said order was passed on 20/02/2020. Hence, the refund claim of 06/10/2020 is otherwise within the limitation. With these submission, ld. Counsel has prayed for the order of Commissioner (Appeals) dated 15.06.2021 to be set aside and the impugned appeal to be allowed. 6. Per contra, ld. D.R. while rebutting these submissions has relied upon the findings recorded by Commissioner (Appeals). Para No.15 of the Order has been specifically impressed, where the Commissioner has relied upon Explanation (e c) to Section 11B of Central Excise Act to consider the date of the order of the Appellate Tribunal to be the relevant date. Ld. D.R. has impressed upon that there is no infirmity in those findings. It is further impressed upon that even as per the Ci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mount deposited during investigation pending litigation is ipso facto an amount of pre-deposit and even interest is payable on such amount to the assessee being successful in appeal from the date of deposit till the date of refund. This Tribunal also in the decision of M/s. Parle Agro Pvt. Ltd. Vs. Commissioner, GST [2021-TIOL-306-CEST-ALL] has held as follows:- "30. In the present case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposit. Such a finding has also been clearly recorded by the Tribunal in the order dated 31.01.2017, which order has attained finality. 31. Section 11D of the Excise Act deals with duties of excise collected from the buyer to be deposited with Central Government. It provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or rejection." Para 5 thereof that Circular reads as follows:- "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 matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with in....