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TMI Blog2022 (9) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... to be covered by the provisions of S.35FF as it stood before the amendment. Admittedly, in the instant matter the amount was pre-deposited by the appellant on 25.6.2014 under Section 35F as per the direction of the Hon ble High Court and during that period un-amended section 35FF[which dealt with interest on delayed refund of amount deposited u/s.35F] mandates the payment of interest only if there was a delay of refund beyond three months from the date of the order of the Tribunal. Interest from the date of payment of the amount till the date of refund of such amount has been made applicable only for post-6.8.2014 deposits when section 35FF was amended. Admittedly in the instant matter the pre-deposit was made on 25.6.2014, which is prior to 6.8.2014 when section 35FF required an interest as specified in Section 11BB to be paid for any amount of pre-deposit which has been refunded after a period of three months from the date of communication of order of appellate authority till the date of refund of such amount - in the instant matter the interest on refund has to be dealt with in accordance with the erstwhile section 35FF which clearly mandates the payment of interest only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oca Cola Company (USA). Service tax was demanded from the appellants by way of two show cause notices dated 9.9.2010 and 23.10.2011 respectively totaling Rs.3,74,67,511/- for the period 1.4.2005 to 26.2.2010 and also for Financial Year 2010-11, which was confirmed by the Adjudicating Authority. When the appellants filed appeal before this Tribunal alongwith stay application, while hearing the stay application they were directed to deposit 50% of the service tax amount with proportionate interest vide order dated 19.9.2013 of the Tribunal in Appeal No. ST/716/2012. Aggrieved, the appellant filed appeal before the Hon ble High Court of Punjab Haryana at Chandigarh being CEA No. 97 of 2013 (O M) and the Hon ble High Court vide order dated 22.4.2014 disposed of the appeal and directed the appellant to deposit a sum of Rs.50 lacs as a condition precedent for hearing of the appeal. Accordingly the appellant made the pre-deposit of Rs.50 lakhs on 25.6.2014. Ultimately, the Tribunal vide final order No. 60321/2020, dated 19.2.2020; reported in 2020(3)TMI 9130-Cestat Chandigarh decided the Service Tax Appeal No. 716/2012 in favour of the Appellant. 4. According to the appellant, still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with the relevant statutory provisions of that period. According to learned Authorised Representative the decision of this Tribunal in the matter of Riba Textile (supra) is not applicable on the facts of this case as in that matter the deposit was made prior to 10.5.2008 i.e. prior to the insertion of section 35FF whereas in the instant matter the pre-deposit was made during the period when unamended section 35FF was in force. He further submits that the very same Bench of the Tribunal, which had passed order in Riba Textile, subsequently passed two orders in favour of Revenue on identical issue in the matter of Saluja Motors Pvt. Ltd. vs. Commr. CE ST, Chandigarh-I; Final Order No. 60414/2020, dated 3.12.2020 and also in the matter of Modern Diaries Ltd. vs. CGST, Panchkula; Final Order No. 60413/2020, dated 3.12.2020, in which it has been decided that the assessee therein is entitled to claim interest on refund of the amount of pre-deposit in terms of Section 35F ibid after three months from the date of communication of the order of the appellate authority till its realization. In both the aforesaid decisions, the pre-deposit was made in the month of May, 2013 i.e. d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 35F, prior to the commencement of the Finance (No.2) Act, 2014, shall continue to be governed by the provisions of Section 35FF as it stood before the commencement of the said Act. A perusal of the aforesaid provisions would make it clear that earlier i.e. upto 6.8.2014, the interest was liable to be paid only in the case of delay beyond three months in granting the refund from the date of communication of order passed by the Commissioner (Appeals) or the Tribunal, whereas post 6.8.2014, this has been changed and an interest has been made payable at a rate not below 5% and not exceeding 36% p.a. as is for the time being fixed by the Central Government by notification in the official gazette on such amount from the date of payment of amount till the date of refund of such amount. Proviso has also been added to it that any amount deposited under this section prior to the amendment, shall continue to be covered by the provisions of S.35FF as it stood before the amendment. 7. Admittedly, in the instant matter the amount was pre-deposited by the appellant on 25.6.2014 under Section 35F as per the direction of the Hon ble High Court and during that period un-amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly due to the assessee. This Court in the facts of the said case had noticed that there was delay of various periods, ranging from 12 to 17 years, in such payment by the Revenue. This Court had further referred to the several decisions which were brought to its notice and also referred to the relevant provisions of the Act which provide for refunds to be made by the Revenue when a superior forum directs refund of certain amounts to an assessee while disposing of an appeal, revision etc. 5. Since, there was an inordinate delay on the part of the Revenue in refunding the amount due to the assessee this Court had thought it fit that the assessee should be properly and adequately compensated and therefore in paragraph 51 of the judgment, the Court while compensating the assessee had directed the Revenue to pay a compensation by way of interest for two periods, namely; for the Assessment Years 1977-78, 1978-79, 1981-82, 1982-83 in a sum of Rs. 40,84,906/- and interest @ 9% from 31-3-1986 to 27-3-1998 and in default, to pay the penal interest @ 15% per annum for the aforesaid period. 6. In our considered view, the aforesaid judgment has been misquoted and misinterpreted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be dealt with in accordance with the erstwhile section 35FF which clearly mandates the payment of interest only if there was a delay beyond three months. The statutory period prescribed therein is 3 months from the date of communication of the order of the Appellate Authority. While going through the case records I find that based on the Final Order dated 19.2.2020 of this Tribunal, the refund of Rs.50 lacs came to be sanctioned by the authority concerned vide Order-in-Original dated 28.10.2020 that too when the appellant sent letter dated 22.7.2020 to the department requesting refund of the amount of pre-deposit alongwith applicable interest from the date of pre-deposit. The department cannot take advantage of lethargy on their part. This is not proper to say that the order is not received in Central GST Commissionerate, Chandigarh. The statute uses the word communication of the order of appellate authority and that cannot be construed as receipt of the copy of the order . When any order is pronounced in Tribunal, Department is represented through Departmental Representative/Authorised Representative and therefore communication of order to them deemed to have been communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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