9911796707
TMI Blog2023 (4) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ] has been challenged before the Hon ble Allahabad High Court and the appeal has been admitted will not help the Revenue in any way as no stay has been granted against the said decision. Further, the main thrust of the argument of the Ld. DR that in the present case the duty has been deposited voluntarily and not under protest also does not have any force because consistently it has been held that any amount that is deposited during pendency of the adjudication proceedings or investigation is in the nature of deposit made under protest as held by the Madras High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, COIMBATORE VERSUS M/S. PRICOL LTD., THE CUSTOMS, EXCISE SERVICE TAX APPELLATE TRIBUNAL [ 2015 (3) TMI 735 - MADRAS HIGH COURT] ,COMMISSIONER, CENTRAL EXCISE 7-A, ASHOK MARG, LUCKNOW VERSUS M/S EVEREADY INDUSTRIES INDIA LTD. [ 2017 (2) TMI 197 - ALLAHABAD HIGH COURT] and GUJARAT ENGINEERING WORKS VERSUS COMMR. OF C. EX., AHMEDABAD-II [ 2013 (5) TMI 599 - CESTAT AHMEDABAD] . The appellant is entitled to claim interest on delayed refund from the date of deposit till the date of payment at the rate of 12% per annum - Appeal allowed. - Service Tax Appeal No. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the order, the appellant requested the department to refund an amount of Rs. 22,81,472/- which was beyond the limitation period. The refund was filed on 18.12.2019 and the same was sanctioned to the appellant vide Order-in-Original dated 15.01.2020. The refund was sanctioned but no interest was given on the refund. Subsequently the department sue moto amended above mentioned order vide order dated 17.02.2020 and held that no refund was payable to the appellant. The appellant filed an appeal against the amendment order before the Commissioner Appeal which was rejected vide Order-in-Appeal dated 20.07.2021. Thereafter, the appellant filed an appeal against the said order of the commissioner appeal before the Hon ble Tribunal and the Tribunal allowed the appeal vide final order no. 60052/2020 dated 15.03.2022 and held that the rectification order passed by the adjudicating authority was wrong and held that the earlier order sanctioning the refund was proper order and restored the same. There was some clerical error in the said final order of the tribunal and the same was rectified vide miscellaneous final order no. 60014/2022 dated 28.03.2022. Thereafter, the refund of Rs. 22,81 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala reported as 2020 (36) G.S.T.L. 171 (S.C). 14) Vasudha Bommireddy Vs. Assistant Commr. Of S.T. Hyderabad reported as 2020 (35) G.S.T.L. 52 (Telangana). 15) Haryana Vanaspati General Mill Vs. the State of Haryana and another decided 07.08.2015 by the Hon ble Punjab and Haryana High Court at Chandigarh. 16) Shanti Construction Co. Vs. Commissioner of C. Ex. S.T. Rajkot reported as 2021 (54) G.S.T.L. 164 (Tri. Del.). He further submitted that the amount deposited during the course of investigation has always been deemed to be under protest as held in the various judgments namely CCE Vs. Pricol Limited -2015 (320) ELT 703 (Mad). CCE Vs. Eveready Industries India Limited -2017 (357) ELT 11(All. ) and Gujarat Engineering Works Vs. CCE -2013 (292) ELT 547 (Tri.-Ahmd.). He further submits that in the case of CCE, Chennai-II Vs. Ucal Fuel Systems Limited-2014 (306) ELT 26 (Mad.), wherein Hon ble High Court has held that the assessee is entitled for payment of interest from the date of deposit till the date of payment of amount. He further submits that the Division Bench of this Tribunal in the case of Parle Agro Pvt. Ltd. Vs. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods and Service Tax Vs. M/s Parle Agro Private Limited in Central Excise appeal no. 18 of 2021. 2) B E office Automation Products Pvt. Ltd Vs. C.C Delhi and C.C. Ludhiana, in custom appeals 60328,60330,60365 60366 of 2019. 3) M/s DLF Home Developers Ltd. Vs. CCE S.T- Gurgaon-I in Service Tax appeal 60926-60927 of 2019. 4) Union of India Vs. West Coast Paper Mills Ltd. -2004 (164) E.L.T. 375 (S.C). 5) Commissioner of Central Excise S.T. Rohtak Vs. M/s Som flavor Masala Pvt. Ltd vide order no. 60385/2020. 6) Mafatlal Industries Ltd. Vs. Union of India -1997 (89) E.L.T. 247 (S.C.). Ld. DR further submitted that the decision of this Tribunal in the case of Parley Agro Pvt. Ltd. Vs. Commissioner of Central Excise, Noida -2018 (360) E.L.T. 1005 (Tri.-A ll.) has been challenged before the Allahabad High Court vide Central Excise Appeal no. 18/2021 and the appeal has been admitted in the High Court vide order dated 19.01.2022 on substantial question of law. He further submitted that once the appeal is admitted in the higher court against any order of the lower authority, then the said decision of the lower authority cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of payment of initial amount till the date of its refund and further the Tribunal relied upon the decision of Kerala High Court as well as the decision of the Ahmadabad Tribunal and thereafter granted the interest of 12% per annum. Here, It is pertinent to mention Para 19, 20 and 21 of the said judgment which are reproduced below:- 19. Further, the interest on the refund shall be payable @ 12% per annum as held by Hon‟ble Kerala High Court in the case of Sony Pictures Networks India Pvt.Ltd.-2017 (353) ELT 179 (Ker.) wherein it has held as under:- 14. Now, the sole question remains to be considered is what is the nature of interest that the petitioner is entitled to get. As discussed above in the judgment Commissioner of Central Excise v. ITC (supra), the Apex Court confined the interest to 12% and further held that any judgment/decision of any High Court taking contrary view, will be no longer good law. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is deposited, the appeals before the Tribunal has to be restored and decided on merits. In these circumstances, the amount deposited by the appellant is to be treated as pre-deposit since the matter had not attained finality during the relevant period. Therefore, refund is to be treated as refund of pre-deposit made when the appeal was pending. There is no dispute that the amounts deposited is duty but this is not the issue which has been taken into account while precedent decisions have allowed the interest at 12% on the refunds claimed in respect of pre deposit. I find that in the decisions cited by the learned advocate, interest at 12% has been allowed. Therefore, following the judicial discipline, I consider it appropriate that interest in this case also is to be allowed @ 12%. Accordingly, original adjudicating authority is directed to workout the differential interest amount and make the payment to the appellants. 21. As the provisions of section 243 Income Tax Act, 1961 and section 35FF of Central Excise Act, 1944, are pari-materia. Therefore, following the decision of Hon‟ble Apex Court in the case of Sandvik Asia Ltd. (supra) and Sony Pictures Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of deposit till the date of payment. Excise Appeal No. 70674 of 2019 filed by the Principal Commissioner for setting aside the order dated 28.05.2019, passed by the Commissioner (Appeals) is dismissed . The above said decision of the Tribunal has been followed by various benches of this Tribunal in the following cases:- 1) Kesar Enterprises Vs. Commissioner of CGST, Noida (Tri.-Allahbad)-2022 (380) ELT 319, Delhi. 2) Allied Chemical and Pharmaceuticals Pvt. Ltd. Vs. CCE CGST, Jaipur (Tri.-Delhi)-2022 (382) ELT, Delhi. 3) Continental Engines Pvt. Ltd. Vs. Commr. (Appeal), C.Ex CGST, Jaipur-I, (Tri.-Delhi) -2022 (382) ELT 522 (Delhi). Further, I find that the arguments of the Revenue that Parley Agro Pvt. Ltd. Vs. Commissioner of Central Excise, Noida -2018 (360) E.L.T. 1005 (Tri.-All.) has been challenged before the Hon ble Allahabad High Court and the appeal has been admitted will not help the Revenue in any way as no stay has been granted against the said decision. Further, the main thrust of the argument of the Ld. DR that in the present case the duty has been deposited voluntarily and not under protest also does not have any forc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
