9911796707
TMI Blog2017 (5) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... that: - This issue has been considered by the Hon'ble High Court in the case of Madura Coats Ltd. [2012 (7) TMI 512 - CALCUTTA HIGH COURT] and held that although the provisions of Rule 35 (FF) of the Act are not in the statute book during the relevant time but the same are applicable for interest for delayed refund - the assessee is entitled for interest after three months from the date of 11.12.1996 till the amount of refund is realised - decided in favor of assessee. Appeal allowed - decided in favor of assessee. - E/4077/2012 & E/55547/2013 - A/60375-60376/2017-SM[BR] - Dated:- 1-3-2017 - Mr. Ashok Jindal, Member (Judicial) Shri. Prakash, Sh. Pawan Kumar, Advocate - For the Assessee Shri. G.M. Sharma - For the Revenue Per Ashok Jindal: Both sides are in appeal against the impugned order. 2. The facts of the case are that the proceedings were initiated against the assessee by way of show cause notice dated 16.07.1984 alleging that they have cleared goods clandestinely without payment of duty. The matter was adjudicated and the demand of ₹ 33,90,449.91 was confirmed by way of order dated 04.01.1985 and penalty of ₹ 25,00,000/- was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2010 (259) ELT 522 (Guj) to say that the pre deposit made by the assessee under Section 35(N) of the Act is equivalent to pre deposit made under Section 35(F) of the Act and pre deposit is a pre deposit to the entertain the appeal. He drew my attention to the order of this Tribunal in the case of Galaxy Entertainment Corpn. Ltd. reported in 2010 (259) ELT 427 (Tri. Mum.) to say that in terms of the Board Circular, the assessee entitled for the interest of delayed refund after three months from the date of the issue of the order and was not required to file refund claim. He also relied on the decision of the Hon'ble High Court of Calcutta in the case of Madura Coats ltd. reported in 2012 (285) ELT 188 (Cal) to say that prior to the provisions of Section 35FF of the Act, the assessee is entitled for interest on delayed refund which has been affirmed by the Hon'ble Apex Court reported in 2014 (301) ELT 161 (SC). 4. On the other hand, the Ld. AR opposed the contention of the Ld. Counsel and submits that the assessee is not entitled for the interest as it is not a pre deposit as per Section 35F of the Act and it is pre deposit in terms of Section 35(N) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In these terms the issue no.1 answered in favour of the assessee. 10. I have gone through the Issue No.2, Whether the amount paid by the assessee under Section 35 (N) of the Act is a pre deposit under Section 35(F) of the Central Excise Act or not? The said issue came up before the Hon'ble High Court of Gujarat in the case of Gaziabad Ship Breakers ltd. (Surpa) wherein the Hon'ble High Court observed as under: 8. Another aspect of the matter is that under Section 129E of the Act in case of any appeal under the chapter, the person desirous of appealing against an order relating to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under the Act, is required to deposit with the proper officer duty and interest demanded or penalty levied. Section 129-E of the Act falls under Chapter XV under the heading Appeals. Chapter XV of the Act is comprised of various provisions from Section 128 to Section 131C of the Act. Section 130 of the Act which provides for appeal to High Court and Section 130-E of the Act which provides for appeal is Supreme Court also fall under Chapter XV. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this case and the assessee is not required to file any application for refund claim. Admittedly, the CBEC Circular is clarifies that the refund claim is to be sanctioned within 3 months from the date of order of the Appellate Court, therefore, any delayed in refund the assessee is entitled for interest after 3 months of the order. The same view has been taken by the Hon'ble High Court of Calcutta in the case of Madura Coats Ltd. (Supra) wherein the Hon'ble High Court observed as under: 19. The decision of the Supreme Court in the case of the Commissioner of Central Excise V. ITC limited (Supra) as regards refund of amount deposited under Section 35(F) was governing the field as the Supreme Court has upheld the direction for payment of interest and quantified it to be @ 12% per annum. The issue before the Supreme Court was whether the pre deposit made as pre condition for the hearing of appeal under the Central Excise Act, 1944 was, on the assessee being ultimately successful, refundable to the assessee with interest as there was no provision in the Central Excise Act for payment of interest on such refund. It is in the course of hearing before the Supreme Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
