9911796707
TMI Blog2022 (10) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... nt at that moment itself had submitted three Cheques total amounting to Rs.65,00,000/-. Out of those Cheques, one amounting to Rs.25,00,000/- got debited from the appellants accounts. The appellant filed the refund of the said amount of Rs.25,00,000/- on 21.11.2016 (Approximately two months later the said search). During the consideration of the said refund claim that the Show Cause Notice No.218 dated 08.05.2017 for duty demand was issued against the appellant. Based thereupon, the refund claim of the appellant dated 21.11.2016 was rejected vide the Order-in-Original dated 21.06.2017 holding it to be premature. Commissioner (Appeals) had confirmed the said order. However, the appeal before this Tribunal was allowed and the said amount of Rs.25,00,000/- was allowed to be refunded. Meanwhile, the Show Cause Notice for duty demand was adjudicated by the Original adjudicating authority vide its order dated 28.12.2017. The confiscation of the goods as were seized at the time of search was also ordered while giving an option to pay the redemption fine of Rs.15.5 Lakhs so as to get the goods released. The appellant paid the said redemption fine on 25.01.2018. Challenging the said order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, order in Appeal is prayed to be set aside. 6. While rebutting these submissions ld. D.R. has mentioned that the appellant has been very strategic since the time of the search of his premises. He was found running two separate units and was wrongly claiming the benefits of SSI exemption. Accordingly, the amounts were asked to be deposited at the time of investigation itself. However, since the said amount stands already refunded, it is no more relevant for the present appeal. In the present appeal it is only the interest accrued on the amount of redemption fine of Rs.15.5 Lakhs, which is in question. Ld. DR has impressed upon section 11A (ec) as the relevant provision. According to the section if the refund claim is not sanctioned within 3 months of the date of its application, the interest on the said amount has to be paid by the Department but from the date of the judgement, vide which the assessee became entitled for the said refund. 7. Ld. DR has therefore emphasised that the Commissioner (Appeals) has rightly mentioned that in terms of aforesaid provision the refund has been made before the expiry of three months. Hence, no question of sanctioning any interest at all ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited was required to be refunded. He also noted that the assessee had deposited the amount only on the insistence of preventive officers. Therefore it is to be construed as a deposit under protest. On similar facts in the cited judgments, such deposits are treated as deposits made 'under protest'. Further more, the Apex Court in the case of Mafatlal Industries Ltd. v. UOI [1997 (89) E.L.T. 247(S.C.)] has clearly ruled that if duty deposits are made during investigation, then it is to be construed as deposit made under protest. The order passed by the Commissioner is legal and proper and there is no infirmity in the same. The appeal is rejected." 10. Further perusing the decision of M/s. Parle Agro Pvt. Ltd. Vs. Commissioner, GST [2021-TIOL-306-CEST-ALL], I also endorse the following findings: "30. In the present case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was 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. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case can only be a subject matter of Section 27A of the Act. Since duty for past clearances was determined and adjusted, the assessee, to our minds, would be entitled to interest under Section 27A of the Act. 11. Before we conclude, we may also indicate that Mrs. Hemalatha had, while emphasizing of the point, advanced the argument that when DRI collected the amount, there was no assessment and that by itself would show that the amounts paid at that point in time by the assessee were voluntary in nature. According to us, this is an argument, which is, in a sense, self-destructive. To say that payments were made voluntarily when DRI officials descended on the premises of the assessee when wedding celebrations were on would amount to turning a blind eye to the harsh realities obtaining on ground. As a matter of fact, in our view, the officers of DRI had clearly no jurisdiction to demand and collect any amounts from the assessee, in 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich interest becomes payable to under Section 11BB ibid - It is manifest from the provision of Section 11B of Central Excise Act, 1944. - That Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
