2023 (10) TMI 347 - AT - Central Excise

Refund of pre-deposit alongwith interest and penalty - part amount rejected - amount covered under section 35F of CEA or not - HELD THAT - The issue with respect to the amount deposited as interest during investigation stands clarified by the Department s own Circular No. 111/05/2009 dated 24.02.2009 wherein it has been clarified that the tax and interest collected without authority of law has to be refunded where the tax which no longer remain the tax cannot continue to retain the character of interest. This Tribunal Bangalore Bench in the case of G Tech Computer Education (supra) has relied upon the decision of High Court of Kerala in the case of THE COMMISSIONER OF CUSTOMS VERSUS M/S. SHREE SIMANDAR ENTERPRISES, 2012 (8) TMI 176 - KERALA HIGH COURT wherein the Hon ble High Court has held that when an appellate authority allows an appeal filed against imposition of tax, duty, fine, penalty, etc., it is the bounden duty of the assessing authority, as part of a democratic Government, to refund the amounts covered by orders of the appellate authority, when appeals are allowed fully or partially. The amount of Rs. 62,12,944/- since was deposited during the investigation of such a proposal which stands finally set aside by this Tribunal, the entire deposited amount was liable to be refunded to the appellant, the entire amount being have acquired the character of pre-deposit as is required to be paid under section 35F of Central Excise Act alongwith interest - Commissioner (Appeals) has rightly granted interest on the amount of Rs. 54,84,578/- however has wrongly rejected the balance claim by bifurcating the amount of Rs. 7,28,366/- as interest. The order to that extent is hereby set aside. Appellant is held entitled for the refund of Rs. 7,28,366/- alongwith the interest at the rate of 12% from the date of the order of this Tribunal dated 08.10.2020 - Appeal allowed.

Summary

Issues:
The case involves a refund claim arising from a service tax demand confirmed against the appellant. The main issue is the rejection of the refund for a specific amount paid by the appellant during the pendency of the adjudication process.

Summary:
The appellant filed a refund claim after a service tax demand was set aside by the Tribunal. The claim sought a refund for the amount deposited during the investigation period. The original adjudicating authority granted a partial refund, but rejected the remaining amount along with interest. The Commissioner (Appeals) granted interest on a portion of the amount but refused the refund for the rest, considering it as interest payment. The appellant challenged this decision before the Tribunal.

The appellant argued that once the demand was set aside, the entire amount paid during the pendency of the case should be refunded. They relied on legal precedents to support their claim. The Departmental Representative, on the other hand, contended that the Commissioner (Appeals) followed the Tribunal's directions and there was no error in rejecting the refund for the interest amount.

After hearing both sides, the Tribunal observed that the entire deposited amount should be refunded to the appellant since the demand was set aside. Legal principles and previous judgments were cited to support this conclusion. The Tribunal held that the Commissioner (Appeals) wrongly bifurcated the amount, and the appellant was entitled to the refund along with interest. The order was set aside, and the appellant was granted the refund amount along with interest from a specific date.

In conclusion, the Tribunal allowed the appeal, ruling in favor of the appellant and directing the refund of the disputed amount along with interest.