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TMI Blog2022 (10) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... est upon the amount of Rs.15.5 Lakhs also. Section 11BB of Central Excise Act is opined to be not applicable to the appellant. It is clear that since the order of confiscation of goods has already been set aside the amount of redemption fine as was deposited by the appellant was an amount of revenue deposit with the department - the appellant to be entitled for the interest on the refunded amount of Rs.15.5 Lakhs (the redemption fine) to be paid from the date of its deposit at the rate of 15% per annum. Appeal allowed. - Excise Appeal No. E/51237/2022 - FINAL ORDER No. 50965/2022 - Dated:- 27-9-2022 - DR.RACHNA GUPTA, MEMBER (JUDICIAL) Mr. Arun Goyal, Advocate for the appellant Mr. Divey Sethi, Authorized Representative for the Respondent ORDER Present appeal has been filed against the Order-in-Appeal No.80-81 dated 08.04.2021 vide which the order of sanctioning refund of an amount of Rs.8,46,247/- including interest of Rs.91,787/- (Rs.7,54,460/- + Rs.91,787/-) and also of sanctioning refund of an amount of Rs.15,50,000/- without interest has been upheld. Appeal has been filed being aggrieved of not getting the interest on the aforesaid amount of Rs.15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts clarifying that the Department is not supposed to get deposits at the time of investigation and if any amount has got deposited during the investigation, the Department has no right to retain the same. Ld. Counsel had relied upon the decision of Raghu Export vs. Union of India reported in 2008 TIOL 785 (High Court of Punjab Haryana) and also on the decision of Hon ble High Court of Bombay in the case of Nelco Limited Vs. Union of India reported in 2002 (144) ELT 56 (Bom.). It is further submitted that in the light of those decisions that the appellant had filed the refund of the aforesaid amount on 21.11.2016. Separate proceedings were in progress with respect to the refund of the aforesaid amount. In the present appeal, initially the refund of the amount of pre-deposit and that of redemption fine was claimed. The said refund claim was partly allowed sanctioning the refund of both the amounts i.e. the amount of pre-deposit (Rs.7,54,460/-) with interest of Rs.91,787/- and the amount of redemption fine (Rs.15.5 Lakhs) (but without interest). Ld. Counsel impressed upon that the interest on the amount of pre-deposit was sanctioned. However, no interest on the amount of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.15.5 Lakhs with interest was claimed. The refund sanctioned but without interest. The bare perusal makes it clear that the amount which was prayed to be refunded is nothing but the interest on the value of the goods, the ownership whereof stands finally confirmed in favour of the present appellants. From no stretch of imagination the same can be called as the amount of duty paid by the appellants. Hence as of now, the said amount is nothing but a deposit made with the Revenue. The issue of refund of such deposit alongwith the interest is no more res integra. 9. This Tribunal in the decision of Bangalore Bench of this Tribunal, in the case of CCE, Nasik vs. Motor Industries Ltd. reported as [2006 (205)ELT 274 (Tri-Bang)] while accepting the appellants contention has dismissed the departmental appeal in following words: 2. On a careful consideration, I notice that the assessee had cleared inputs for processing under Rule 57F(4) which were not received back fully within the stipulated period. The appellants paid the duty of Rs 4,71,197 in RG 23-A, dated 30-9-97 as directed by the preventive team of Central Excise Officers. However, the goods were received back subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government, by notification in the Official Gazette. 33. There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate of interest has not been prescribed, when revenue deposit is required to be refunded. 11. Since the entire amount as was proposed to be recovered from the appellant was got deposited even prior to the issuance of Show Cause Notice and since the said demands stand already set aside vide the order of this Tribunal, it stands clear that the said amount was not the liability of the appellant to be deposited i.e. it was not the amount of duty. Hence section 11B of Central Excise Act creating the notion of three months as impressed upon by learned Departmental Representative, is not applicable to the facts of present case. The amount which stands deposited since 06.07.2012 has been kept with the department with no authority for retaining the same. Hon ble High Court of Madras in the case of Calcutta Iron and Steel Co. Vs CESTAT, Chennai reported as [2017 350 ELT 327 (Mad)] has held as follows: 10.5 .. the interest on delayed refund can only be paid if the duty is determined, according to us, is clearly an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest on 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. The said decision of Hon ble Apex Court has been followed by this Tribunal in M/s. Fujikawa Power vs CCE ST, Chandigarh I (supra). 13. In the light of above decisions, I hold that appellant is entitled for the interest upon the amount of Rs.15.5 Lakhs also. Section 11BB of Central Excise Act is opined to be not applicable to the appellant. I draw my support from the decision of Hon ble Supreme Court in the case of Ranbaxy Laboratories Ltd. Vs. Union of India reported in 2011 (273) E.L.T. 3 (S.C.) in which the Hon ble Apex Court has dealt with the issue of interest on delayed refund at great length by interpreting provisions of Section 11BB vis- -vis Section 11B of the Central Excise Act, 1944. In the said decision, the Hon ble Court has held as under:- Interest on delayed refund - Interest on delayed refund is payable under Section 11BB of Central Excise Act, 1944 on the expiring of period of three months from the date of receipt of application under Section 11B(1) ibid and not from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The said judgment is rendered, in my considered opinion under similar circumstances. So also in Kuil Fire Works Industries v. Collector of Central of Excise [1997 (95) E.L.T. 3 (S.C.), the pre-deposit made by the assessee was directed to be returned to him with 12% interest. I have also come across the judgment of the Calcutta High Court in Madura Coats Pvt. Ltd. v. Commissioner of C. Ex., Kolkata-IV [2012 (285) E.L.T. 188 (Cal.), wherein the peremptory directions of the Apex Court in the judgment of ITC Ltd. (supra) was considered and ordered 12% interest, and further held that when the High Court directed the respondents to pay interest to the appellant in terms of the circular dated 8-12-2004 on the pre-deposit of the delayed refund within two months, it has to be construed that, the Court meant the rate of interest which was awarded by the Supreme Court in the case of Commissioner of Central Excise v. ITC Ltd., which was the rate quantified by the Supreme Court in the absence of any statutory provisions in the Act in question. Even though various other judgments of various High Courts and the various Tribunals was brought to my notice awarding 15% interest, in view of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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