2020 (4) TMI 178 - AT - Central Excise

Refund of Interest on interest and penalty component deposited earlier - denial on the ground that Section 11BB of the Central Excise Act, 1944 allows interest only on refund of duty - HELD THAT - It is not in dispute that the appellant had deposited the duty for ₹ 33,32,327/- i.e. the entire amount of duty, interest and penalty confirmed against the appellant by the original adjudicating authority. The appellant chose to deposit ₹ 5.00 lakhs initially before the Commissioner (Appeals) and later before the CESTAT, the remaining amount in compliance with Section 35F of the Central Excise Act, 1944 - On a plain reading of the provision of Section 35FF, it is clear that the appellant was required to deposit entire amount of duty, interest and penalty while pursuing their appeal before the first appellate authority or CESTAT. Section 35FF prescribes that the amount deposited before the appellate authority, if not refunded within three months from the date of communication of the order to the adjudicating authority, the appellant shall be paid interest at the rate specified under Section 11BB after expiry of three months from the date of communication of the order till the date of refund of such amount. Thus, the reference under Section 35FF of Central Excise Act, 1944 to Section 11BB is only for the limited purpose of applicability of rate of interest in computing the refund amount. The amount deposited with the appellate authorities pursuant to Section 35F of Central Excise Act, 1944 cannot be considered as duty, interest or penalty but as an amount necessary to pursue the appeal before the appellate forum. Consequently, if the decision of the appellate forum is in favour of the appellant, the appellants are entitled to refund of the amount deposited for pursuing the appeal before the appellate authorities within the period prescribed under Section 35FF of Central Excise Act, 1944. The matter is remanded to the adjudicating authority to compute the interest amount keeping in view the provisions of Section 35FF of the Central Excise Act, 1944 as was in force during the material time - Appeal allowed by way of remand.

Summary

Issues:
1. Refund of interest amount on pre-deposit made under Section 35F of the Central Excise Act, 1944.

Detailed Analysis:
The appeal was filed against an order passed by the Commissioner of Central Tax, Pune, regarding the duty payment on cleared inputs by the appellants. The appellants had cleared input as such to their unit by reversal of the CENVAT Credit availed on such inputs. A demand notice was issued for recovery of duty short paid, along with interest and penalty. The demand was confirmed, and the appellant filed an appeal before the Commissioner (Appeals) and then approached the Tribunal. The entire amount of differential duty, interest, and penalty totaling ?33,32,327 was deposited during the appellate proceedings. The Tribunal decided the issue in favor of the appellant, and they filed a refund of the pre-deposit amount paid. The adjudicating authority sanctioned the interest claim of ?21,07,619 to the appellant. The Revenue filed an appeal before the Commissioner (Appeals), who modified the order and rejected a refund of ?12,61,489, leading to the present appeal.

The appellant contended that the denial of the refund of ?12,61,489 being interest amount was erroneous as it was a refund of the pre-deposit made under Section 35F of the Central Excise Act, 1944. The appellant referred to relevant judgments to support their argument. On the other hand, the Revenue argued that interest is only admissible on the refund of duty as per Section 11BB of the Central Excise Act, 1944, and excess interest had been paid to the appellant. The Revenue also cited judgments to support their position.

The main issue in the appeal was whether the appellants were entitled to interest of ?12,61,489. The Revenue's argument was that interest on interest and penalty deposited earlier was not admissible, as per Section 11BB of the Central Excise Act, 1944, which allows interest only on the refund of duty. The Tribunal observed that the appellant had deposited the entire amount of duty, interest, and penalty confirmed by the original adjudicating authority. The provisions of Section 35FF of the Central Excise Act, 1944 were analyzed, which prescribe interest on delayed refund of the amount deposited under the proviso to Section 35F. The Tribunal concluded that the amount deposited for pursuing the appeal before the appellate authorities cannot be considered as duty, interest, or penalty but as an amount necessary for the appeal. Therefore, the appellants were entitled to a refund of the amount deposited, along with interest as per Section 35FF of the Central Excise Act, 1944. The matter was remanded to the adjudicating authority to compute the interest amount in accordance with the relevant provisions.

In conclusion, the Tribunal allowed the appeal by way of remand, emphasizing the entitlement of the appellants to a refund of the pre-deposit amount made under Section 35F of the Central Excise Act, 1944, along with interest as per the applicable provisions.