9911796707
TMI Blog2024 (5) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... o which the aforesaid circular was issued by CBEC, directed for payment of interest @ 12% on delayed refund of pre deposit u/s 35F of the Central Excise Act, 1944, which is pari materia with the provision of Section 129E of the Customs Act. The rate of interest on delayed refund of pre-deposit shall be governed by the law laid down by Hon ble Supreme Court in ITC Limited (supra) as well as a coordinate Bench of this Court in Madura Coats Private Limited [ 2012 (7) TMI 512 - CALCUTTA HIGH COURT] till a statutory provision in the Act was enacted and a notification was issued thereunder providing for rate of interest on delayed refund of pre-deposit. With effect from the date on which the provision came in the statute, it shall hold the field and the rate of interest shall be governed by it. Since the period in question is prior to the notification providing for rate of interest on delayed refund of pre-deposit, issued under the Act, therefore, the case of the appellant shall be governed by the law laid down by the coordinate Bench of this Court in Madura Coats Private Limited (supra). Thus, the appeal is allowed, the impugned order Shri Rajendra Kumar Jain v. Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, the appellant filed a writ petition No. 1601 of 2005, which was disposed of by order dated 05.09.2005 directing the respondents to consider the appellant's claim for refund within three weeks. On 01.12.2005, the Commissioner of Customs directed refund of Rs. 9,93,200/- along with applicable rate of interest. On 05.01.2006, the Assistant Commissioner of Customs passed an order for refund of Rs. 9,93,200/- and interest @ 6% per annum amounting to Rs. 1,74,803/-. Since the interest was granted @ 6% per annum, therefore, the appellant became aggrieved with the order of the Assistant Commissioner. Consequently, he filed an appeal before the Commissioner (Appeal) on 21.02.2006, which was dismissed by the Commissioner (Appeal) by order dated 29.06.2006. Aggrieved, the appellant filed an appeal before the CESTAT on 19.07.2006, which was dismissed by the CESTAT by the impugned order dated 24.01.2012. Aggrieved with the order of the CESTAT, the appellant herein has filed the present appeal on 14.06.2012, which has been admitted on the afore-quoted substantial question of law. Submissions 4. Learned counsel for the appellant submits that there was no provision under the Act pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the respondents before us. Thus, it remains undisputed that the seized cash of Rs. 9,93,200/- was made pre-deposit by order of the CESTAT dated 22.04.2000 under Section 129E of the Customs Act, 1962. Admittedly, neither there was any provision nor any notification providing for rate of interest on delayed refund of pre-deposit. The pre-deposit made on 22.04.2000 was refunded to the appellant on 05.01.2006. It is pursuant to the judgment of Hon'ble Supreme Court in ITC Limited (Supra) that the Central Board of Excise and Customs issued the aforesaid circular dated 08.12.2004 allowing payment of interest on delayed refund, but this circular also does not provide rate of interest. Hon'ble Supreme Court in the case of ITC Limited (Supra), pursuant to which the aforesaid circular was issued by CBEC, directed for payment of interest @ 12% on delayed refund of pre6 deposit under Section 35F of the Central Excise Act, 1944, which is pari materia with the provision of Section 129E of the Customs Act. 8. In similar circumstances, a co-ordinate Bench of this Court in Madura Coats Private Limited v. Commissioner of Central Excise, Kolkata - IV 2012 (285) ELT 188 (Cal.) directed int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards refund of amount deposited under Section 35F was governing the field as the Supreme Court has upheld the direction for payment of interest and quantified it to be @ 12% per annum. The issue before the supreme Court was whether the pre-deposit made as a pre-condition for the hearing of the appeal under the Central Excise Act, 1944 was, on the assessee being ultimately successful, refundable to the assessee with interest as there was no provision in the Central Excise Act for payment of interest on such refund. It is in the course of hearing before the Supreme Court that the Learned Solicitor General after taking instructions made a statement that the Central Board of Excise and Customs proposes to issue a circular in connection with the payment of interest on all such pre-deposits. At the time a draft copy of the proposed circular was handed over to the Supreme Court there was no rate of interest specified in the proposal and, therefore, the Supreme Court awarded interest @ 12% per annum. Therefore, when this Court directed the respondent to pay interest to the appellant in terms of the Circular Bearing No. 802/35/204-CX., dated December 8, 2004 on the pre-deposit of the del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statute, it shall hold the field and the rate of interest shall be governed by it. Since the period in question is prior to the notification providing for rate of interest on delayed refund of pre-deposit, issued under the Act, therefore, the case of the appellant shall be governed by the law laid down by the coordinate Bench of this Court in Madura Coats Private Limited (supra).
10. For all the reasons afore-stated, the appeal is allowed, the impugned order No. A-34/KOL/2012 dated 23.01.2012 in Customs Appeal No. C/A/231/2006 [Shri Rajendra Kumar Jain v. Commissioner of Customs (Port), Kolkata] passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata is hereby set aside and it is held that the appellant is entitled for payment of interest @ 12% on the delayed refund of the amount of pre-deposit, which shall be paid by the respondents to the appellant within one month from the date of production of a certified copy of this order. The substantial question of law is answered in negative i.e. in favour of the appellant and against the respondents.
(SURYA PRAKASH KESARWANI, J.)
I agree.
(RAJARSHI BHARADWAJ, J.) X X X X Extracts X X X X X X X X Extracts X X X X
|
