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TMI Blog2018 (6) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... r the expiry of three months from the date of communication of the Order till the date of the refund should be paid along with the refund of deposit - Section 35FF would apply to all refunds of pre-deposit pending on the date of its insertion and as it itself states that liability to interest starts three months from the Order of Appellate Authority, the relevant date is not the date when Section 35FF was inserted, but the date of the Order of the Appellate Authority. Tribunal in the matter of Commr. of C. Ex. & S.T., Panchkula versus Sainsons Paper Industry Limited [2016 (2) TMI 288 - CESTAT NEW DELHI] has held that it can be said that prior to 10/05/08, i.e. before introduction of 35FF, the Respondent was entitled to get refund of pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved the Respondent filed Appeal before this Tribunal in the year 2006 being Appeal No. 15/17 of 2006. This Tribunal vide stay Order dated 15/2/06 directed the Respondent to pre-deposit ₹ 50 lakh under Section 35F of the Central Excise Act, 1944 as a condition for hearing the Appeal and the same was deposited by the Respondent through Challan on 14/3/2006. The said Appeal was finally decided by this Tribunal vide final Order dated 21/3/2006 remanding the matter back to the Adjudicating Authority for deciding the matter afresh. I have been informed that upon remand the matter is still pending before the Commissioner (Appeals). I have also been informed by the ld. Counsel for the Respondent that for the subsequent years similar issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prior to that date. Therefore, interest at the rate specified in Section 11BB of the Act is to be granted after the expiry of three months from the date of communication of Tribunal s final Order dated 21/3/2006 till the date of refund of such amount. 5. We have heard ld. AR for the Appellant and ld. Advocate of the Respondent and peruse the record. In order to appreciate the issue involved in this matter, it is relevant to go through Section 35F and 35FF and Circular dated 2/1/2002 and 8/4/2004 of CBEC which are reproduced under: Section 35F. Deposit, pending appeal, of duty demanded or penalty levied Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount deposited by the appellant in pursuance of an order passed by the Commissioner (Appeals) or the Appellate Tribunal (hereinafter referred to as the appellate authority), under the first proviso to Section 35F, is required to be refunded consequent upon the order of the appellate authority and such amount is not refunded within three months from the date of communication of such order to the adjudicating authority, unless the operation of the order of the appellate authority is stayed by a superior court or tribunal, there shall be paid to the appellant interest at the rate specified in section 11BB after the expiry of three months from the date of communication of the order of the appellate authority, till the date of refund of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee s favour. It is again reiterated that in terms of Hon ble Supreme Court s order such pre deposit must be returned within 3 months from the date of the order passed by the Appellate Tribunal/ Court or other Final Authority unless there is a stay on the order of the Final Authority/ CESTAT/ Court, by a Superior Court. 6. The ld. AR for the Appellant although did not dispute about the refund of duty and it has been specifically mentioned in the grounds of Appeal that the application for refund of pre-deposit was not barred by time as per Section 11B, however as per the Circulars dated 2/1/02 and 8/12/04 for getting refund of the pre-deposit, the assessee was required to file an application to the jurisdictional AC/DC after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the claimants, to automatically become liable to get the refund of pre-deposit and also, interest if not paid within the time limit prescribed there. I am in complete agreement with the finding of the ld. Commissioner (Appeals) that Section 35FF would apply to all refunds of pre-deposit pending on the date of its insertion and as it itself states that liability to interest starts three months from the Order of Appellate Authority, the relevant date is not the date when Section 35FF was inserted, but the date of the Order of the Appellate Authority. 8. A similar issue was decided in favour of the claimant in the matter of Madura Coats Pvt. Ltd. versus Commissioner; 2012 (285) E.L.T. 188 (Cal.) and later on affirmed by the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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