2021 (7) TMI 176 - HC - Customs

Entitlement of interest on pre-deposit - whether the appellant is entitled to interest on pre-deposit under section 129EE of Customs Act - HELD THAT - While the original provision stipulated interest would be payable at a rate specified in Section 27A after expiry of three months from the date of communication of the order of the appellate authority till the date of refund of such amount the substituted provision provided for interest at a notified rate not below 5 per cent and not exceeding 36 per cent from the date of payment till the date of refund of such amount. Moreover the proviso to the substituted provision clarified that all amounts deposited under Section 129E prior to the commencement of the substituted provision on and from 2014 would be guided by pre-amended section 129EE. The interest on the pre-deposit refunded to the appellant is to be determined as pre amended Section 129EE of the Customs Act i.e. for a period commencing after expiry of three (3) months from the date of communication of the order of the appellate authority till the refund of such amount and not from the date of deposit of the said amount till the date of refund. Appeal dismissed.

Summary

Issues:
Rectification order regarding interest on pre-deposit under Section 129EE of the Customs Act.

Analysis:
1. The appeal was against a rectification order by the Customs, Excise and Service Tax Appellate Tribunal regarding the interest on pre-deposit under Section 129EE of the Customs Act. The appellant had initially challenged an Order-In-Original imposing duty and penalty for incorrect availing of DEPB scrips. The appellant deposited the duty and penalty during the appeal process and sought a refund upon the appeal being allowed. The Commissioner of Appeals set aside the interest component ordered in favor of the appellant, stating the deposit was not a pre-deposit under Section 129E. The Tribunal later reversed this decision, stating the deposit was indeed a pre-deposit under Section 129E, and interest needed to be paid to the appellant. A rectification application was filed by the Department, leading to the rectification order in question.

2. The appellant contended that the rectification order wrongly applied Section 129EE and denied interest from the date of deposit till the date of payment. The appellant argued that the deposit was made before the statutory provision on interest from the date of deposit was introduced. However, the Court disagreed with this contention, emphasizing that the statutory provision for refund of pre-deposit (Section 129EE) was introduced in 2008, after the appellant had made the deposit in 2006.

3. The statutory morphism of Section 129EE was discussed, highlighting the changes introduced by Acts 18 of 2008 and 25 of 2014. The original provision specified interest after three months from the date of communication of the appellate authority's order, while the substituted provision mandated interest at a notified rate from the date of payment till the refund. The proviso clarified that pre-deposits made before 2014 would be governed by the pre-amended Section 129EE.

4. The Court clarified that the interest on the pre-deposit refunded to the appellant should be determined as per the pre-amended Section 129EE, starting after three months from the date of communication of the appellate authority's order till the refund. The Court also noted that the reference to a previous judgment was not relevant as it did not address the specific amendment to Section 129EE of the Customs Act.

5. Ultimately, the Court found no grounds for admission of the appeal and dismissed it, without any order as to costs. As a result, any pending miscellaneous applications were to be closed as well.