C.C.E. & St Panchkula vs M/S Steel Auto Industries

[Arising out of Order-In-Appeal No. 448/SVS/PKL/2014 dated: 29.09.2014 passed by Commissioner (Appeals) Delhi-III]

For approval and signature:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. & ST Panchkula ...Appellant

Vs.

M/s Steel Auto Industries Respondent

Appearance:

Mr. R.K. Mishra, DR for the Appellants

Mr. Naveen Bindal, Advocate, for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing.09.06.2015

FINAL ORDER NO. 51815 /2015

Per S. K. Mohanty:

This appeal is directed against the impugned order dated 29.09.2004 passed by the Commissioner of Central Excise, Delhi-III, Gurgaon, wherein it has been held that the respondent herein is eligible for refund of amount of Rs. 30 Lakh deposited during the course of investigation by the Central Excise Officials in the factory of the Respondent. The impugned order has been passed in favour of the Respondent by relying on the decision of this Bench of the Tribunal in the case of Florida Electrical Ind. Ltd. vs CCE Delhi-I reported in 2004 (168) ELT 393 (Tri. Del).

2. Heard the Ld. Counsel for both the sides and perused the records.

3. It is an admitted fact that the amount in question was deposited by the Respondent during the course of investigation by the Central Excise Officers in its factory and the amount was deposited vide challan dated 25.5.2012 & 11.4.2013. Since, the amount paid during the course of investigation of the matter which is not in relation to removal of goods from the factory, such payment cannot be construed as payment of Duty of Excise. For claiming refund of such amount, there was no requirement of filing any refund application in terms of Section 11B of the Central Excise Act, 1944. Since, the said amount is a mere deposit; the Department cannot retain this amount on the ground that Show Cause Proceedings have already been initiated, seeking the recovery of the said amount as Central Excise Duty. I find that the decision of this Bench of the Tribunal in the case of Florida Electricals Ind. Ltd. (Supra) is squarely applicable to the facts of the present case, wherein, it has been held that though SCN has been issued and personal hearing conducted by the Adjudicating Authority, but in absence of determination of the duty liability, the Revenue cannot retain the amount deposited by the assessee. The said decision of the Tribunal, though was challenged by the Revenue before the Honble Supreme Court by filing the SLP, but in view of the fact that subsequently the SLP was withdrawn by the Department, the said decision of the Tribunal has attained finality. Thus according to the said decision, the Department is not permitted to retain the amount deposited by the appellant by considering the same as Duty of Excise. Therefore, I am of the considered view that there is no infirmity in the impugned order, and as such, the appeal filed by the revenue appellant is dismissed.

(Dictated and pronounced in open court)

(S.K. Mohanty)

Member(Judicial)

Neha

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