TaxTMI 
TaxTMI 
2023 (4) TMI 5
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....t pursuant to search in his premises on 30th September, 2008. On the said date itself the appellant was made to deposit certain amount. Consequently, an amount of Rs.10.00 Lakhs by way of two cheques was got deposited by the appellant. 2. The demand of Rs.2,42,77,294/- was proposed vide Show Cause Notice dated 12.05.2009 alleging the clandestine removal by the appellant. The said proposal was initially confirmed vide Order in Original No.20/2010 dated 30th August, 2010. The said order was challenged before this Tribunal. Vide Stay Order No.816 & 817/2011 dated 13.05.2011 read with Final Order No.729 & 730/2011 dated 12.08.2011, the matter was remanded back for de-novo adjudication, however, directing the appellant to make a deposit of Rs.4....
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..... It has been retained by the Department for long number of years. Thus, the appellant is entitled to claim the interest there upon from the date of deposit itself. It is therefore, submitted that the findings of adjudicating authorities below for awarding the interest just from the date of appeal before the Tribunal are unreasonable, unjustified and are against the settled case law on this issue. Ld. Counsel has relied upon the decision of this Tribunal in Excise Appeal No.50773 of 2022 in the case of M/s. Design Dialogues India Pvt. Ltd. Vs. Commissioner of Central Tax and CGST as was decided vide Final Order No. 51514/ 2022 dated 3rd June, 2022. The decision of this Tribunal in the case of Parle Agro Pvt. Ltd. Vs. Commissioner of CGST, N....
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....ly." 8. Perusal thereof makes it abundantly clear that the amount of Rs.40.00 Lakh is an amount of pre-deposit i.e. an amount paid under section 35 F of Central Excise Act. The refund thereof is permissible in terms of Section 35FF which reads as follows:- "Section 35FF. Interest on delayed refund of amount deposited under Section 35F. - Where an amount deposited by the appellant under section 35F is required to be refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, not below five 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 o....
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....pra) this Tribunal has clarified as follows:- "Once finding recorded by Tribunal that amount deposited by appellant during investigation as also that deposited pursuant to interim order passed by Tribunal was revenue deposit and not Excise duty deposit and there was no challenge to this finding of Tribunal, Department, after Commissioner (Appeals) allowed appeal allowing interest on refunded such deposit, cannot raise this issue by filing present appeal before Tribunal, especially when earlier order passed by Tribunal was already accepted by Revenue Furthermore, when Assistant Commissioner, also ordered for refund of amount, said order was also not assailed by Department - Section 35C of Central Excise Act, 1944." 10. Department's own N....
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.... Notifications issued under Section 11AA, 11BB, 11DD and 11AB of the Excise Act, the grant o interest @ 12% per annum seems to be appropriate." 11. In the light of entire above discussion and decisions as mentioned above, it becomes clear that the amount deposited by the assessee during the investigation is not an amount of duty hence section 11B/ 11BB cannot be invoked. Commissioner (Appeals) has not considered any of those decisions. Thus, he is observed to have violated the judicial protocol. It is observed from the order under challenge that the amount has been acknowledged to have been deposited during the course of investigation, still holding the same to be an amount of duty specially when this Tribunal has set aside the confirmati....