2022 (2) TMI 138 - AT - Central Excise

Condonation of delay in filing appeal - appellant has given plausible explanation for delay and the appeal was filed within 90 days and the same is within the power of Commissioner (Appeals) to condone the delay - grant of interest on the refund amount under Section 35FF - HELD THAT - The appellant was due to sufficient cause prevented from filing their appeal within the prescribed period of limitation of sixty days. Further, on the issue of appeal filed on 90th day, which is within time. Accordingly, the delay before the Commissioner (Appeals) is condoned. The applicable section for grant of interest is Section 35FF, which provides for grant of interest on the amount refundable pursuant to order of the Appellate Court. It is further provided in this section that interest should be granted from the date of deposit till the date of refund, without any discrimination - Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS SERVICE TAX, NOIDA (VICE-VERSA) 2021 (5) TMI 870 - CESTAT ALLAHABAD , wherein interest on pre-deposit (made during investigation), have been enhanced from 6% to 12%, following the ruling of the Apex Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS 2006 (1) TMI 55 - SUPREME COURT . The Adjudicating Authority is directed to grant interest @ 12% per annum from the date of deposit till the date of refund. Such interest should be granted within a period of 45 days from the date of receipt or service of the copy of this order - appeal allowed - decided in favor of appellant.

Summary

Issues:
Delay in filing the appeal before the Commissioner (Appeals) and condonation of delay. Grant of interest on the refund amount under Section 35FF.

Analysis:
The appellant, an assessee, appealed against the rejection of their appeal by the Commissioner (Appeals), both on the grounds of delay in filing the appeal and on merits. The appellant received the order-in-original on 05.11.2019 but filed the appeal on 03.02.2020. The delay was attributed to the theft of the appeal papers from Mr. Tewari's briefcase, leading to a series of events that caused the delay in filing. The appellant contended that the appeal was filed within 90 days, providing a plausible explanation for the delay. The Tribunal agreed with the appellant that there was sufficient cause for the delay and that the appeal was filed within the prescribed period of limitation, thus condoning the delay.

Regarding the grant of interest, the Tribunal held that Section 35FF was the applicable provision for interest on the refundable amount. Citing a previous Tribunal order in a similar case, the Tribunal directed the Adjudicating Authority to grant interest at the rate of 12% per annum from the date of deposit till the date of refund. This decision was supported by a Division Bench ruling that increased the interest rate from 6% to 12% on pre-deposit amounts, following a Supreme Court ruling. The Tribunal ordered the interest to be granted within 45 days from the date of receipt or service of the order, thereby allowing the appeal in favor of the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, condoning the delay in filing the appeal and directing the grant of interest at 12% per annum on the refundable amount under Section 35FF. The decision was based on the finding that the appellant had provided a valid explanation for the delay and had filed the appeal within the prescribed time limit.