AI Drafter 
TaxTMI 
TaxTMI 
2024 (12) TMI 408
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....s) has rejected the appeal filed by the appellant. 2.1 Appellant had deposited Rs.50 lakhs in terms of Section 35F of the Central Excise Act,1944 as directed by CESTAT vide stay order No ST/SO/55789/2013-CU[DB] dated 23.01.2013. 2.2 Tribunal vide Final Order No.ST/A/71843/2018-CU[DB] dated 02.08.2018 allowed the appeal of the appellant and consequently appellant have sought refund of the amount deposited in terms of Section 35F of the Act. Original Authority has rejected the refund claim as time barred. 2.3 Aggrieved appellant have filed appeal before Commissioner (Appeals), which has been dismissed by the impugned order referred in para-1 above. 2.4 Aggrieved appellant have filed this appeal. 3.1 I have heard Shri Neeraj Kum....
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....thorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty in interest demanded or the penalty levied : Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty in interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue : Provided further that where an application is filed before the Commissioner (....
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....d under sub-section (2) of Section 129E, he is required to file an application seeking dispensation of such deposit, in which case he is required to make the pre-deposit in terms of the order that may be passed by the Commissioner (Appeals) or the Appellate Tribunal. Thus, the contention that it is only the payment made pursuant to any order of any appellate authority or judicial forum under Section 129E or Section 131 of the Act would fall within the ambit of pre-deposit under the said provision is fallacious and contrary to the provisions of the section itself and as such does not merit acceptance. 8. Another aspect of the matter is that under Section 129E of the Act in case of any appeal under the Chapter, the person desirous of....
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.... of the Act, does not merit acceptance." 4.3 It is settled position in law that amount deposited for hearing of the appeal needs to be refunded to the appellant without going into any integrities of Section 11B, even CBIC has vide Circular No.984/08/2014-CX dated 16.09.2014 circulated as under:- "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, refu....
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....per para 5.2 supra. 4.4 Again by Circular No 1053/02/2017 dated 10.03.2017 following was clarified : "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 prescribed rate from the date of making the deposit to the date of refund in terms of Section35FF of the Central Excise Act, 1944. (ii) 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 Section11B of the Central Excise Act, 1944. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund wi....