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TMI Blog2024 (9) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... sit hence cannot be retained for want of any authority of law to retain such amount. Unless there is valid demand against the depositor, it must be refunded with interest from the date it was wrongly collected. Interest on refund - HELD THAT:- Section 11B and 11BB of Central Excise Act will not be applicable to the amount in question. The assessee is entitled for interest on the amount deposited during investigation. Otherwise also, as per the Article 300A of Constitution of India also, no person shall be deprived of his property, save by authority of law. Once the demand proposed under five show cause notices is set aside, it becomes clear that the money deposited continues to be the appellant's property. He cannot be deprived of the same and is entitled for benefits arising out of said property. Hence interest accrued on the amount in question during the period it was in fixed deposit is the property of the owner of the amount i.e. the appellant herein. It was otherwise, involuntary deposited - the appellants are entitled to claim the interest on the amount as has been refunded in their favour that too to be paid from the date of payment of initial amount till the date of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for claiming refund of amount of Rs. 50,00,000/- (Rupees Fifty Lakhs only) in the office of the Commissioner of the Customs, ICD TKD, Delhi on 22.01.2020, which was transferred to Air Cargo, NCH. The Assistant Commissioner of Customs vide Order-in-Original No. 04/2021 dated 02/03/2021 rejected the refund claim of Rs.50,00,000/- for want of Original TR-6 Challan. Aggrieved by the impugned Order dated 02/03/2021, the appellant filed an Appeal before Commissioner (Appeals) whereas vide Order-in-Appeal dated 15.09.2021, learned Commissioner (Appeals) set aside Order-in- Original No. 04/2021 dated 02/03/2021 and held that rejection of refund claim is not sustainable. Further it was held that issue of interest is left open to be decided by refund sanctioning Authority. Thereafter, Assistant Commissioner of Customs (Refund) vide Order-in-Original No. 045/2021 dated 24/12/2021 allowed the refund of Rs. 50,00,000/- but had not granted interest on the said amount. Aggrieved by the same the appellant has filed appeal before Commissioner (Appeals), whereas Ld. Commissioner has sanctioned the interest from date of deposit till date refund however, has ordered that interest is payable as applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too from the date of deposit. Hence there is no infirmity in the order. Reiterating the findings of Commissioner (Appeals), the appeal is prayed to be dismissed. 5. Having heard both the parties and after perusing the record it is worth noting that amount of Rs.50,00,000/- was deposited much before issuance of show cause notice and adjudication order did not confirm any demand against the appellant and thus the said amount was never appropriated against any demand. There was no demand against the appellant and accordingly such collection of amount was without authority of law. This position of law is now settled by various courts. I rely upon the case of Parle Agro Pvt. Ltd. reported as 2018 (360) ELT 1005 (T-All.) and Omjai Bhavani Silk Mils (P) Ltd. reported as 2009 (243) ELT 560 (T-Bang.). Rely upon the decision of this Tribunal in the case of M/s. Toyota Kirloskar Auto Parts Pvt. Ltd. reported as 2009 (240) ELT 124 (Tri.-Bang.) in which is held that: The amount is not due and it had also been collected much before the adjudication order, the amount can only be treated as deposit. The officer of DRI had clearly no jurisdiction to demand and collect any amounts from the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, which order has attained finality. 31. Section 11D of the Excise Act deals with duties of excise collected from the buyer to be deposited with Central Government. It provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Excise Act deals with interest on the amount collected in excess of the duty. It provides that where an amount has been collected in excess of the duty from the buyer of such goods, the person who is liable to pay such amount shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty six per cent per annum, as is for the time being fixed 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 interest has not been prescribed, when revenue deposit is required to be refunded. The Tribunal in the said case had allowed the interest at the rate of 12% on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land in terms of Article 141 of the Constitution of India. The Hon ble Apex Court, in the said case, has observed as follows: 45. The facts and the law referred to in paragraph (supra) would clearly go to show that the appellant was undisputably entitled to interest under Sections 214 and 244 of the Act as held by the various High Courts and also of this Court. In the instant case, the appellant's money had been unjustifiably withheld by the Department for 17 years without any rhyme or reason. The interest was paid only at the instance and the intervention of this Court in Civil Appeal No. 1887 of 1992 dated 30.04.1997. Interest on delayed payment of refund was not paid to the appellant on 27.03.1981 and 30.04.1986 due to the erroneous view that had been taken by the officials of the respondents. Interest on refund was granted to the appellant after a substantial lapse of time and hence it should be entitled to compensation for this period of delay. The High Court has failed to appreciate that while charging interest from the assesses, the Department first adjusts the amount paid towards interest so that the principle amount of tax payable remain outstanding and they are ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly and proximately caused by a breach of contract or duty; remuneration or wages given to an employee or officer. 11. Hon ble High Court Delhi also in the case of M/s. Digipro Import and Export Pvt. Ltd. Vs. Union of India reported as 2017 (350) ELT 145 (Del.) has observed as under: It is indeed extraordinary that officers at the level of a Superintendent would have such vast powers of collecting duty on the spot without even a quantification of the duty amount preceded by a Show Cause Notice (SCN). No attempt has been made to demonstrate that the above is a procedure known to law. It actually points to the opposite. And that is what makes it inexcusable.... ..This illegal practice adopted by the Anti-Evasion Department of Central Excise requires a deeper investigation. The Court has every reason to believe that this has come to light only because the Petitioner has approached this Court. This practice is perhaps being adopted in a number of instances which are yet to come to the notice of the Court. There will be serious ramifications if this practice is allowed to continue unchecked. In the first place, it must be realised that the officers of the Anti-Evasion Wing of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section. (iv) The Notification No. 6/2011 dated 01.03.0211 under Section 11AB wherein Central Government has fixed the rate of interest at 18% per annum for the purpose of the said section. From the above notifications, issued under the respective sections of the Act, it becomes clear that the rate of interest varies from 6% to 18%, subject to notification in that respect. 15. This Tribunal in the case of M/s. Parle Agro Pvt. Ltd. Vs. Commissioner, Central Goods Service Tax, Noida (vice- Versa) reported as 2021 (5) TMI 870 CESTAT ALLHABAD has held that in the light of the above discussed notifications the grant of interest at the rate of 12% per annum seems to be appropriate. Tribunal Delhi (CESTAT) also in the case of Duggar Fibre Pvt. Ltd. Vs. Commissioner of C. Ex., Cus. CGST, Delhi reported as 2021 (378) ELT 293 (Tri.-Del.) wherein the adjudicating authority was ordered to grant interest @ 12% per annum from the date of deposit till the date of refund. The relevant Para is reproduced as under : I further take notice that Divisioin Bench of this Tribunal in Parle Agro (P) Ltd. Vs. Commissioner, CGST - 2021-TIOL-306-CESTAT- ALL, wherein interest on pre-deposit (made during invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant with interest @ 12% and the bank guarantee of Rs. 1,50,000/- furnished by the appellant shall stand discharged. No order as to costs. 18. In view of the above settled proposition, the payment made by the appellant at the time of investigation, in absence of any SCN for the same, cannot be held to be the payment against the demand raised by the Department without even going into the merits of the nature of demand. Though no notification, if any, is brought to notice by the department, irrespective, in view of the decisions of Hon ble Supreme Court and others as discussed above, I hold that the appellant is eligible for refund of interest at the rate of 12%. Reliance in this regard is also placed on decision of Hon'ble Tribunal in case of M/s. Bird Audio Electronics Vs. Commissioner of CGST [FINAL ORDER No. 50172/2022 dated 28/02/2022]: Relying upon the decision of this Tribunal in the case of M/s. Parle Agro Pvt. Ltd. vs. Commissioner CGST, Noida reported as 2021 TIOL 306 - CESTAT and upon another decision of this Tribunal in Final Order No. 51266/2019 announced on 04.09.2019 in Excise Appeal No.51370/2018 that I order that the amount of the claim in question be refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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