Order date – 17 November 2022

 Facts –

• The Appellant, Capital Ispat Ltd. is engaged in the manufacture of MS Angle, channel, flats. 
• A show-cause notice was issued on 4.09.2015 vide which the duty amounting to Rs.6,51,66,787/- was demanded from the appellant alleging the evasion of Central Excise duty by way of suppression of receipt of raw material, of actual production leading to clandestine clearance of their final product.
• The duty liability of Rs. 75,09,206/- was voluntarily accepted and deposited by the appellant. The interest amounting to Rs.17,38,023/- was also voluntarily deposited by the appellant against their anticipated liability towards the demand of duty for Rs.6,51,66,787/- in the said show cause notice.
• On introduction of SVLDRS Scheme, 2019, the appellant filed application for resolution of dispute initiated vide show-cause notice dated 04.09.2015. SVLDR Scheme Form No. 3 dated 19.3.2020 was issued in favour of the appellant with a remark that the amount of Rs.17,38,023/- has not been paid towards duty and the same has been deposited as interest and there after the appellant filed a refund claim which was rejected.

Issue –

• Whether the refund amount rejected as the same was deposited towards duty or interest?

Order –

• The Tribunal states that provision is not talking about tax dues only as defined under section 123 of the Finance Act, 2019 to be deducted while estimating duty amount to be deposited. But it is talking about any such amount which has already been deposited by the assessee which includes definitely the amount paid as interest.
• A bare perusal makes it clear that such an amount as is not required if deposited and amount is found in excess to the amount payable by the declarant, same shall not be refunded. The amount payable by the declarant has to be calculated in terms of Section 124(2) i.e. by making a deduction of any amount deposited at any stage prior.
• It is clear that amount in question was to be deducted till the stage of SVLDRS Form No. 2 but was not deducted even at the stage of SVLDRS Form No. 3. Hence, the said amount cannot be covered under proviso to Section 124(2). Similarly, any amount paid under section 130 of Finance Act, 2019 is the amount towards the tax dues as defined under section 123 of the Finance Act, 2019.
• The Tribunal relied on the decision of the Tribunal in the case of M/s. Tarkeshwar Das Construction Company vs CCE & CGST, Jodhpur (Rajasthan) reported as [2022 (5) TMI 10 – CESTAT New Delhi] wherein it was held that if the amount deposited prior to adjudication have not been adjusted at the adjudication stage nor at the stage of settlement under SVLDR Scheme, the said amount is the amount lying with the Department as Revenue deposit. The same has to be refunded. It was also held in this decision that the limitation as provided under section 11 B of Central Excise Act, 1944 is also not applicable to such Revenue deposit.
• Hence the appeal is allowed.