2010 (12) TMI 997 - HC - Service Tax

Validity of Section 154 as introduced by the Finance Act 2003 - levying interest on the amount recoverable from the petitioners on account of the excise duty in terms of Section 154 - Exemption to the new industrial units from payment of central excise duty - petitioners have contested against recovery of interest as there was no wilful default on its part - Held that - The benefits which the petitioners sought to be enforced by challenging the constitutional validity of Section 154 of the Finance Act 2003 was on the basis of the pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit which is considered just and fair on the other hand is vital. The former falls within the jurisdiction of court while later does not. It cannot be spelt out from the decision of the Apex Court in M/s. R.C. Tobacco (2005 (9) TMI 80 - SUPREME COURT OF INDIA) that such a right or benefit has accrued to the petitioners as the specific question of the issue involved was confined not only to the constitutional validity of Section 154 of the Act but also to all relevant circumstances and incidental questions centering around the issue. Hence the present relief prayed for by the petitioners must be deemed to have been denied for what is claimed but not granted necessarily get denied in judicial or quasi-judicial proceeding. Writ dismissed.

Summary

Issues Involved:
1. Levying interest on the amount recoverable from the petitioners due to excise duty.
2. Validity of Section 154 of the Finance Act, 2003.
3. Legality of retrospective amendment and its implications.
4. Demand for interest during the period of stay orders.
5. Nature of interest as a penalty or compensation.
6. Recovery mechanisms under Section 154 of the Finance Act, 2003.

Issue-wise Detailed Analysis:

1. Levying Interest on Recoverable Amounts:
The petitioners challenged the action of the respondents in levying interest on the amount recoverable from them on account of excise duty as per Section 154 of the Finance Act, 2003. The court noted that the petitioners were refunded excise duty based on a notification, which was later withdrawn retrospectively by Section 154. The petitioners argued that they had already paid back the principal amount and should not be liable for further interest, especially during the period when the recovery was stayed by the court.

2. Validity of Section 154 of the Finance Act, 2003:
The petitioners initially challenged the constitutional validity of Section 154, which was upheld by the Apex Court. The court emphasized that the retrospective amendment made by the Finance Act, 2003, was valid, and all duties refunded were liable to be recovered along with interest.

3. Legality of Retrospective Amendment:
The retrospective amendment under Section 154 was intended to recover excise duties refunded during the period when the exemption was in force. The court noted that the petitioners were aware of the provisions of Section 154 and the interim order passed was subject to the final outcome of the litigation. The Apex Court upheld the retrospective amendment, and the petitioners were liable for the consequences thereof.

4. Demand for Interest During Stay Orders:
The petitioners contended that no interest should be levied for the period when the recovery of excise duty was stayed by the court. However, the court held that an interim order is always subject to the final adjudication, and the benefit derived from such an order does not create any right to claim exemption from interest. The court ruled that the petitioners were liable to pay interest even for the period when the stay order was in operation.

5. Nature of Interest as Penalty or Compensation:
The petitioners argued that the interest levied was in the nature of a penalty and not compensation. They claimed that the liability for interest is not automatic and should not be imposed unless there was a deliberate defiance of the law. The court rejected this argument, stating that the interest rate of 15% was a statutory provision under Section 154(4) and not a penalty but a consequence of delayed payment of duties.

6. Recovery Mechanisms Under Section 154:
The court highlighted that Section 154 provides an independent machinery for the recovery of duties along with interest. The provision mandates that all amounts of duty or interest not paid within thirty days from the date of assent to the Finance Bill, 2003, would carry an interest rate of 15% per annum from the date of expiry of the thirty days till the date of payment. The court affirmed that the petitioners could not escape the liability of interest accrued due to litigation delays.

Conclusion:
The court dismissed the writ petitions, holding that the petitioners were liable to pay the interest as per Section 154 of the Finance Act, 2003. The interim order was vacated, and there was no order as to costs. The court emphasized that the benefits derived from an interim order do not create a right to claim exemption from statutory interest, and the retrospective amendment and recovery mechanisms under Section 154 were valid and enforceable.