TaxTMI 
TaxTMI 
2026 (6) TMI 1361
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....upply of tangible goods taxable under section 65(105)(zzzy) and (zzzzj) respectively, of the Act, without obtaining registration and without paying service tax. On completion of enquiry a show cause notice dated 17.10.2013 was issued to the appellants for demanding service tax of Rs. 8,36,086/- under the provision of section 73(1) of the Act, alongwith interest and penalty. 2.2 The demand made was confirmed vide the Order-in-Original No. (ST-168/2013)87 of 2015 dated 21.12.2015, alongwith interest and penalty under section 75 and 78 of the Act, respectively. Besides penalty under section various sub-sections of section 77 of the Act was also imposed 2.3 Aggrieved the appellants filed an appeal before the Commissioner (Appeals) Allahabad, who vide Order-in-Appeal No. 36/ST/Alld/2018dated 11.01.2018 rejected the appeal filed by the appellants. 2.4 Appellant filed an appeal before the CESTAT, which vide Final Order No. 70044/2024 dated 31.01.2024 allowed the appeal of the appellants.. 2.5 Vide Order-in-Original No. 175/Div-Vns/Refund/2023-24 dated 21.03.2024, allowed the claim of refund amounting to Rs. 84,609/- against pre-deposit of service tax and service tax amounting ....
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....m Chapter V of the Finance Act, 1994. In this case Hon'ble Apex Court was addressing the specific and narrow question 'Whether interest is payable by the Revenue to the assessee if the aggregate of installments of Advance Tax or TDS paid exceeds he assessed tax?" which has no application to a deposit mad under protest following the show cause notice. ⮚ Impugned order is manifestly contrary to the decisions of Hon'ble Supreme Court (Sinkhai Synthetics), the Hon'ble Allahabad High Court (Ebiz.com) and multiple Division Benches of this tribunal (Parle Agro, Emmar MGF, Shri Rathi Steel) 3.3 Authorized Representative re-iterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. I have also taken on record the written submissions filed by the appellant alongwith the email dated 07.06.2026. 4.2 Impugned order records the finding as follows: "5.3 I have carefully considered the submissions made by the appellants in their grounds of appeal and contents of order in original read with rectification order. I find that the present appeal is limited ....
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....r order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 35-B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed Rupees Ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. Explanation. For the purposes of this section "duty demanded" shall include,- (i) amount determined under Section 11D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under Rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rules, 2002 or the CENVAT Credit Rules, 2004.] Thus I note that the language of section 35 of the Central Excise Act, 1944 clearly deals with the issue relating to pre-deposit to file an appeal before the Commissioner (Appe....
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....ty. 4.4 Subsequent to the issue of the show cause notice appellant made a application under Service Tax Voluntary Compliance Encouragement Scheme 2013, on 23.12.2013. In their application they declared their admitted liability of Rs 8,37,939.00/-. They made the deposited of their admitted liability of the service tax and filed the letter before the adjudicating authority along with the challans evidencing the payment of admitted liability. The letter filed and the challans for the deposit of the said amount are reproduced below:-   4.5 The show cause notice was adjudicated as per the order in original dated 21.12.2015 confirming the demand of Rs.8,36,086/- and the service tax deposited was appropriated against the demand confirmed. Demand of interest was upheld and penalties were imposed upon the appellant. 4.6 Appellant filed appeal before the Commissioner (Appeal) who vide order in appeal dated 11.01.2018 upheld the order in original with some modifications. Aggrieved appellant filed the appeal before the CESTAT. At Sl No 14 of the appeal memorandum (ST-5) appellant stated as follows: "Service Tax Rs 84609/- (i.e. 10% of Rs 846086/- vide Challan No....
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....appeal by the First Appellate authority. 4.8 Order in original dated 21.03.2024, ignoring the above have recorded the findings as follows for allowing the refund claim to the extent of Rs 9,52,798/-: "Discussion and findings 1. Instant refund is scrutinized and I find that the claimant had deposited following amount as detailed below. S.N. Challan No. & Date Head Amount (Rs.). 1 127 dated 28.03.2018 Pre-deposit for filing Appeal before the CESTAT Allahabad 84,609/- 2 1028 dated 13.05.2015 Tax 4,25,939/- 3 1011 dated 13.05.2015 Tax 4,12,000/- I find that the appellate Authority vide O-I-A No. 36/ST/Alld/2018 dated 11.01.2018 upheld the confirmation of demand of service tax (including Cesses) of Rs. 8,36,086/- along with interest and imposition of penalty of Rs. 8,36,086/- under Section 78 of the Act as confirmed and imposed by O-I-O No. (ST-168/2013) 87 of 2015 dated 21.12.2015. However, penalty imposed under section 77 (1) (a) of the Act, was reduced to Rs. 10,000/- vide aforesaid O-I-A. The Hon'ble CESTAT, Allahabad vide Order dated 31.01.2024 has set aside the demand of Service Tax and Interest & pe....
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....ter referring to Circular dated 10.03.2017, I have observed as follows: "4.8 By circular no 1053/02/2017-CX dated 10.03.2017 Board has clarified as follows without any qualification as follows: 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 Section 35FF of the Central Excise Act, 1944. Since the said Circular has been issued without any qualification it would not be open to authorities subordinate to introduce qualification as has been sought to by the impugned order and not apply the said circular. 4.9 In view of the discussions as above, I do not find any merits in the impugned order." 4.11 As I have concluded the matter on the facts of case in hand, I do not take up any of the decisions referred by the appellant for consideration, which in any case are to totally irrelevant for the controversy in the present appeal. 4.12 I do not find any merits in the impugned order. 5.1 Appeal is allowed. (Order pronounced in open ....
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....9/- vide Challan No. 01011 dated 13.05.2015 or Rs. 412000/- & Rs. 425939/- vide Challant Vo. 05028 dated 13.05. 2015. But we would Ike to mention here that the aforesaid Service Tax has been deposited by us R 19/5/2015 for giren उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤• COPY 5 Aashirwad Equipments Pvt. Itd Head officeid Equipments Pvt. Ltd Varanasi imar Pradesh: 221010 Ph. No. 0542 2227135 Read Phiwad Equipments Pvt Ltd Mis Anshirts UNDER PROTEST: The same may please be treated as UNDER PROTEST in legal terms for any departmental proceedings. We still hope that your goodself shall comprehend the actual scenario and help us for a full refund of the service tax we have deposited. Thanking you Sincerely yours, For Aashirwad Each LAext. Ltd., product 4/ (VARANASI) Director ALTO - AASH Cc: Superintendent Central Excise & Service Tax Range South East for Information and records R 88 Aashirwad Equipments Pyt. Ltd. Tradup Lista. 19/5/2015 Director [ MED EQUIPMENT VARANASI à¤à¤¾à¤°à¤¤à¥€à¤¯ सà¥à¤Ÿà¥‡à¤Ÿ बैंक State Bank of India The Banker to Every Indian c-Recei....