TaxTMI 
TaxTMI 
2023 (1) TMI 741
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....The appellant is engaged in providing service of commercial and industrial construction and construction of residential complex and has also been registered for providing the said services. A Show Cause notice dated 13th January, 2012 was issued to the appellant proposing recovery of service tax for an amount of Rs.1,80,80,651/- for the period from 1st April 2009 to 31st July, 2011 alleging that the 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.20,19,00....
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....y liability as was confirmed by the Department. It is further submitted that the amount was got deposited by the Department from the appellant during the period of investigation itself. Since the demand of duty as was alleged by the Department stands set aside the said deposited amount cannot be held to be an amount of duty. The said amount was held to be an amount of pre-deposit vide the stay order of this Tribunal bearing No.52938/2015 dated 04.08.2015. The appellant is very much entitled for the refund of the said amount in terms of section 35FF of the Central Excise Act. Ld. Counsel has also relied upon the Boards Circular No. 984/08/2014-CX and F. No.390/Budget/1/2012-JC dated 16.09.2014 impressing upon that the payments made during th....
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....aim 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 Circular dated 16.09.2014 it is clear that the amounts....
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....mand was initially proposed for Rs.1,80,80,651/- and the proposed demand was confirmed partially for an amount of Rs.94,23,765/-. Apparently and admittedly, when this confirmation of demand was challenged, this Tribunal vide Stay Order of 04.08.2015 held that the amount already deposited by the appellant in proportion to the confirmed demand, is such as meets the requirement of section 35 of Central Excise Act, 1944 read with Section 83 of the Finance Act (para 4 of the said order). These observed facts are sufficient for me to hold that the amount for which the refund is claimed was an amount of deposit/pre-deposit. I draw my support from the decision of Hon'ble Apex Court in the case of Sandvik Asia Ltd. Vs. Commissioner of Income Tax, Pu....
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....e amount, be liable to pay interest at such rate not below ten 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. 33. There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate of interest has not been prescribed, when revenue deposit is required to be refunded." 8. Allahabad High Court also in the case of Ebiz.Com Pvt. Ltd. (Supra) (as relied upon by the appellant has held that any amount which was paid at the initial stage of investigation but has not finally been appropriated, the said amount is in the nature of deposit or pre-deposit. The Circular as relied upon by the appellant also is in ....
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....vour 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 seekin....