Sangeeta K. Vishen, J. - (1.)With the consent of the learned advocates for the respective parties, the matter is taken up for final disposal.
(2.)By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the Order-in-Appeal No.OCESA-SRT (APPEALS)/PS-636/2019-20 dated 27.2.2020 with a further direction to the respondents to forthwith return and restitute Rs.50,00,000/- deposited by the petitioner with the department.
(3.)Brief facts, as can be culled out from the memo of the writ petition, are as under:-
3.1 The petitioner, has been a concern solely controlled and operated by Ved Prakash Wadhwani, a citizen of India. The petitioner, at the relevant point of time, was having a factory at Udaipur in the State of Rajasthan, where parts and components of wrist watches and clocks were being manufactured. The petitioner was registered with Central Excise Authorities at Udaipur. According to the petitioner, it was manufacturing the above-referred goods and removing them on payment of appropriate excise duties leviable thereon in accordance with the provisions of the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944') and the Rules framed thereunder.

3.2 It is the case of the petitioner that it sold and delivered various parts and components to one M/s. Balaji Enterprises and had paid the appropriate excise duties on the goods sold and delivered to M/s. Balaji Enterprises and in furtherance whereof, central excise invoices were also issued for said sales and deliveries. According to the petitioner, M/s. Balaji Enterprises availed CENVAT credit of central excise duties paid by the petitioner on the goods sold and delivered. The final products, namely, wrist watches and clocks manufactured by M/s. Balaji Enterprises were exported on payment of central excise duties leviable on such final product.

3.3 M/s. Balaji Enterprises had exported 221 consignments of the goods manufactured by it during the period from November, 2003 to September, 2004 and has accordingly, claimed rebate of excise duty paid by it on the exported goods. Not only this, the Central Excise Authorities, after in-depth scrutiny, sanctioned as well as paid the rebate claims for all 221 exported consignments followed by regular orders sanctioning rebate to the tune of Rs.7.06 crores. Somewhere in the month of September, 2004, inquiries were initiated against M/s. Balaji Enterprises on the basis that rebate claims were erroneously paid to it, inasmuch as, it had not received any duty paid inputs and materials from its suppliers including the petitioner. The inquiry led to the issuance of a show-cause notice dated 15.2.2007 and the petitioner was one of the noticees. The show cause notice required the petitioner as well as others to show cause as to why penalty should not be imposed.

3.4 According to the petitioner, during the investigation, it was forced to deposit a sum of Rs.50,00,000/-, though there was no duty liability which the petitioner was required to discharge; however, the petitioner deposited Rs.50,00,000/- under protest in the month of October, 2004. Thereafter, an Order-in-Original No.5/MP/Daman/2011 dated 30.3.2011 was passed by the Commissioner, Daman, inter alia, imposing penalties on the petitioner and also its authorised signatories. Being aggrieved, the petitioner and others against whom liabilities were confirmed, preferred appeals along with stay applications before the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as 'the Appellate Tribunal') which, passed a common order dated 4.9.2012, inter alia, observing that, against the penalty imposed, there is a deposit of an amount of Rs.50,00,000/-, which was enough deposit to hear and dispose of the appeal of M/s. MSN Enterprises i.e. the petitioner. The appeals were thereafter heard by the Appellate Tribunal which, after hearing all the concerned, passed an order dated 10.7.2019, whereby, the appeal filed by the petitioner was allowed and the matter was remanded to the Adjudicating Authority for fresh determination.

3.5 The petitioner thereafter, filed a detailed reply dated 30.7.2019 before the Adjudicating Authority and the Adjudicating Authority thereafter, held a personal hearing on 15.10.2019 when the petitioner and its advocate appeared and had made various submissions in support of its case. It has been averred that the case is still pending and final order has not been made.

3.6 According to the petitioner, the amount of Rs.50,00,000/- which was deposited by it under protest during the investigation and subsequently considered to be an adequate pre-deposit by the Appellate Tribunal for hearing of the appeal on merits, was supposed to be returned by the Revenue inasmuch as, there has been no confirmed penal or other liability against the petitioner any longer. Accordingly, the petitioner made a formal application for refund of the amount of pre-deposit of Rs.50,00,000/- on 24.7.2019 with the Deputy Commissioner of Central Excise, Daman.

3.7 Apropos the application dated 24.7.2019, the officer of the Deputy/Assistant Commissioner of Central Excise, Daman, issued a show-cause notice F.No.V/18-39/Refund/Div.III/2019- 20/R dated 27.8.2019 proposing to reject the refund claim on the ground that the claim made by the petitioner was premature. In response to the show-cause notice dated 27.8.2019, the petitioner filed its reply dated 2.10.2019, inter alia, emphasising that pre-deposit made for hearing of any appeal on merit or any amount deposited during the inquiry and investigation had to be returned by the Revenue and there was no jurisdiction vested in the Revenue authorities to retain such amount when there was no confirmed liability against the person.

3.8 The respondent No.3, i.e. the Deputy Commissioner of Central Excise, Daman while not considering the reply of the petitioner, passed an Order-in-Original No.DMN-III/DC/18/19- 20/R dated 8.11.2019 rejecting the petitioner's refund claim on the ground that the payment of Rs.50,00,000/- could not be treated as pre-deposit considering the fact that the same was deposited during investigation and prior to the issuance of the show-cause notice in the year 2007. Resultantly, it is held that the claim of the petitioner for refund was premature and that the case remanded by the Appellate Tribunal has still not attained finality.

3.9 Being aggrieved and dissatisfied by the said order dated 8.11.2019, the petitioner preferred an appeal before the Commissioner of CGST & Central Excise (Appeals), Surat; however, the appeal filed by the petitioner met the same fate. The ground which weighed with the Commissioner of CGST & Central Excise (Appeals), Surat to reject the claim of the petitioner for refund was that the refund would not become due merely on remand, more particularly, when the amount was paid by the petitioner on his own assessment.