2023 (4) TMI 5 - AT - Central Excise

Interest on delayed refund - relevant date - interest to be calculated on the amount of refund at the rate of 12% per annum from the date of deposit thereof, or not - Section 11 B of Central Excise Act - HELD THAT - The amount of Rs.40.00 Lakh is an amount of pre-deposit i.e. an amount paid under section 35 F of Central Excise Act. The refund thereof is permissible in terms of Section 35FF - The bare reading makes it clear that the amount of pre-deposit has to be refunded alongwith the interest from the date of the payment of the amount till the date of refund of the said amount. Thus, it is clear that the entire amount of Rs. 50.00 Lakhs was not an amount of duty as has been held by the adjudicating authority below. It was merely a revenue deposit. The issue is no more res-integra and these observations have attained finality vide several decisions including the decision of Hon ble Apex Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS 2006 (1) TMI 55 - SUPREME COURT where it was held that Once finding recorded by Tribunal that amount deposited by appellant during investigation as also that deposited pursuant to interim order passed by Tribunal was revenue deposit and not Excise duty deposit and there was no challenge to this finding of Tribunal, Department, after Commissioner (Appeals) allowed appeal allowing interest on refunded such deposit, cannot raise this issue by filing present appeal before Tribunal, especially when earlier order passed by Tribunal was already accepted by Revenue Furthermore, when Assistant Commissioner, also ordered for refund of amount, said order was also not assailed by Department - Section 35C of Central Excise Act, 1944. Thus, it becomes clear that the amount deposited by the assessee during the investigation is not an amount of duty hence section 11B/ 11BB cannot be invoked. Commissioner (Appeals) has not considered any of those decisions. Thus, he is observed to have violated the judicial protocol. It is observed from the order under challenge that the amount has been acknowledged to have been deposited during the course of investigation, still holding the same to be an amount of duty specially when this Tribunal has set aside the confirmation of duty demand is highly unreasonable. Thus, it is held that order under challenge has wrongly restricted the entitlement of appellant for the interest on the refunded amount to the date w.e.f. the date of filing of appeal. The appellant in view of settled principles is held entitled for the interest on the refunded amount of Rs.50.00 Lakhs from the date of the respective deposit i.e. for Rs.10.00 Lakhs w.e.f. 30th September, 2008 and for Rs. 40.00 Lakhs w.e.f. 1st August, 2011 that too at the rate of 12 % till the sanction thereof - appeal allowed.

Summary

Issues:
1. Entitlement to interest on refund amount from the date of deposit.
2. Interpretation of Section 35FF of the Central Excise Act.
3. Application of legal precedents in determining interest on refunded amount.
4. Compliance with judicial protocol in deciding interest entitlement.

Analysis:
1. The appellant contested the interest awarded from the date of appeal till payment, arguing for interest from the date of deposit. The Tribunal noted Rs.50.00 Lakhs were deposited initially, with Rs.10.00 Lakhs on the search date and Rs.40.00 Lakhs as per Tribunal directions. The Tribunal clarified the Rs.40.00 Lakhs was a pre-deposit under Section 35F, entitling interest from payment till refund, not being duty. Legal precedents supported this view, including Sandvik Asia Ltd. v. Commissioner of Income Tax-I, Pune, and Pace Marketing Specialities v. Commissioner of Central Excise.

2. Section 35FF of the Central Excise Act mandates interest on delayed refund of amounts deposited under Section 35F. The Tribunal emphasized the refundable nature of pre-deposits, with interest payable from payment till refund. The appellant's deposit was not classified as duty, aligning with judicial interpretations and the legislative intent behind Section 35FF. The Tribunal highlighted the appellant's entitlement to interest on the refunded amount as per the legal provisions.

3. The Tribunal referenced various legal decisions, such as Parle Agro Pvt. Ltd. v. Commissioner of CGST, to support the appellant's claim for interest on the refund amount at a rate of 12% per annum from the respective deposit dates. Notably, the Tribunal cited Notification No.6/2011-CE, which specified interest rates for delayed payment of duty, further reinforcing the appellant's entitlement to interest on the refunded amount.

4. In assessing compliance with judicial protocol, the Tribunal found the Commissioner (Appeals) had not considered relevant legal precedents and misinterpreted the nature of the appellant's deposit. The Tribunal concluded that the order under challenge had erroneously restricted the appellant's interest entitlement to the date of appeal filing. By setting aside the order and allowing the appeal, the Tribunal upheld the appellant's right to interest on the refunded amount from the respective deposit dates, emphasizing adherence to established legal principles and precedents.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal, the legal interpretations applied, and the final decision in favor of the appellant's entitlement to interest on the refunded amount from the deposit dates.