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TMI Blog2022 (5) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 55 - SUPREME COURT ] holding the assessee entitled for interest along with the refund of the amount which he was not liable to pay to the department. In the Sandvik Asia case, Hon ble Apex Court has appreciated section 243 of Income Tax Act which talks about the interest of delayed refund. Section 35FF of Central Excise Act, 1944 deals with similar situation and has actually held as para materia to section 243 of Income Tax Act by the Hon ble Apex Court. Thus, it is held that Commissioner (Appeals) has committed an error while rejecting the claim of the interest on the entire amount of refund. No justification for the bifurcation have been given while sanctioning the interest only on the amount of pre deposit has been given in the order. It is also observed that the findings of the claim to be barred by time are also not correct as the relevant date for recovery period is considered as date of filing the appeal (i.e. 01.09.2014). Inspite of date of communication of the final order entitling the appellant from the impugned relief, 30.6.2017. Seeing from this angle also the order under challenge is not sustainable. The appellant is held entitled for the interest on the remaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount,. The refund whereof has been claimed. Learned Counsel has laid emphasis upon the following final decisions of this Tribunal:- 1. CCE, Nasik vs. Motor Industries Ltd. [2006 (205) ELT 274 (Tri-Bang)]; 2. M/s. Jovex International vs CCT, New Delhi [Final Order No. 52002/2021 dated 25.11.2021]; 3. Parle Agro (P) Ltd. vs Commissioner CGST [2021-TIOL-306-CESTAT-ALL]; 4. M/s. J K Cement Workds vs CCE, CGST, Udaipur [Final Order No. 51052/2021 dated 02.03.2021]; 5. M/s. Glossy Colour & Paints vs CCT, New Delhi [Final Order No. 51670/2021 dated 16.7.2021]; 6. M/s. Hitesh Industries & others vs CGST, New Delhi [Final Order No. 51631-51633/2020 dt 7.12.2020]; 7. M/s. Fujikawa Power vs CCE & ST, Chandigarh I [Final Order 61041-61042/2019 date 26.11.2019 ] 5. It is submitted that interest only of Rs. 46,662/- on the amount of pre- deposit is in violation of the settled law in this respect. The order of Commissioner (Appeals) is, accordingly prayed to be set aside and appeal is prayed to be allowed. 6. Per contra learned Departmental Representative has mentioned that refund has been sanctioned well within the period of three months. Hence no question arises for enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposit. Such a finding has also been clearly recorded by the Tribunal in the order dated 31.01.2017, which order has attained finality. 31. Section 11D of the Excise Act deals with duties of excise collected from the buyer to be deposited with Central Government. It provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Excise Act deals with interest on the amount collected in excess of the duty. It provides that where an amount has been collected in excess of the duty from the buyer of such goods, the person who is liable to pay such amount shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty-six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette. 33. There is no provision in the Excise Act, which deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the fact that they are not vested with powers of an Assessing Officer. Furthermore, if we were to accept this argument of the learned counsel, then it would tantamount to allowing the Revenue to take advantage of its own wrong. 11.1 This apart, the Revenue has enjoyed the benefits of the money collected from the assessee on account of purported liability to pay duty, which was ultimately proved to have been wrongly foisted. Therefore, in our opinion, it only be right that the Revenue be called upon to pay interest to the assessee because, by its nature, any such collection of money by Revenue can only be termed as exaction under ostensible authority of law." 8. The Hon'ble Apex Court also has settled this issue in the case of Sandvik Asia Ltd. reported as [2006 (196) ELT 257 (SC)] holding the assessee entitled for interest along with the refund of the amount which he was not liable to pay to the department. In the Sandvik Asia case, Hon'ble Apex Court has appreciated section 243 of Income Tax Act which talks about the interest of delayed refund. Section 35FF of Central Excise Act, 1944 deals with similar situation and has actually held as para materia to section 243 of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner at 12% from the date of expiry of three months from 18-11-2002, to the amount of refund already made, within a month from the date of receipt of a copy of this judgment, after adjusting any interest paid." 9. In view of the entire above discussions and the decisions referred, it is held that Commissioner (Appeals) has committed an error while rejecting the claim of the interest on the entire amount of refund. No justification for the bifurcation have been given while sanctioning the interest only on the amount of pre deposit has been given in the order. It is also observed that the findings of the claim to be barred by time are also not correct as the relevant date for recovery period is considered as date of filing the appeal (i.e. 01.09.2014). Inspite of date of communication of the final order entitling the appellant from the impugned relief, 30.6.2017. Seeing from this angle also the order under challenge is not sustainable. Same is hereby set aside. The appellant is held entitled for the interest on the remaining amount of refund also tht too at the rate of 12 Percent to be calculated from the date of payment thereafter. Consequent thereto the appeal is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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