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TMI Blog2024 (10) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... encement of Finance (No. 2) Act, 2014 the provisions as contained in erstwhile section 35FF shall apply. In the present case the refund applications for refund of amount deposited under protest were made on 21.05.2019 (received on 29.05.2019) and 21.06.2019 (received on 21.07.2019) and the refunds were paid vide order dated 11.06.2019 and 15.07.2019 i.e. within a month of the receipt of the application. Thus, appellant would not be entitled to any interest as per the section 11BB or Section 35 FF of Central Excise Act, 1944. Appeals are dismissed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) For the Appellant Shri Pranav Pandey, Chartered Accountant Shri Shubham Agarwal, C.M.A. For the Respondent Shri Sandeep Pandey, Authorised Representative ORDER SANJIV SRIVASTAVA: These appeals are directed against order in appeal No 78- ST-APPL-LKO-2020dated20.03.2020and79-ST-APPL-LKO-2020 dated 20.03.2020. By similarly worded order Commissioner (Appeal) has held as follows, while allowing the appeals filed by the department: 6. I have gone through the case record. It is apparent from the record that the amount refunded by O I O dated 15.07.2019 was not a pre-deposit under Section 35F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive for revenue. 3.2 Arguing for the appellant learned Chartered Accountants submits that: - It is undisputed that the amount paid by the appellant as service tax under protest during litigation. When any amount paid under protest, it is neither pre- deposit nor service tax; it is only a deposit made by the appellant and the said amount was retained by the Revenue Authority without any authority of law. The amount retained by Revenue Authority under protest is violation of Article 265 of the Constitution of India. The amount retained by the revenue authority is liable to be refunded along with interest @ 12% p.a. from the date amount paid under protest till its realization. Similar views have been pronounce by the higher authority in the case of M/s Jalan Con Cast Ltd. Final Order No dated 12-01-2024 relying on the following decisions: Ebiz.com Pvt. Ltd. [2017 (49) S.T.R. 389(All)]. Alar Infrastructures Private Limited [2015(40) S.T.R. 1066 (Del.)]. Oriental Insurance Company Limited [2023 SCC Online Del 6505] KVR Construction 2010 SCC Online Kar 5419. Shahi Export Ltd. [Appeal No 60376 of 2020 by Regional Bench- Court No.1 of CESTAT, Chandigarh vide order dated 16-08-2021]. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per records calculation of interest is as under: S No GAR-7 Challan No Date Amount (Rs) Date of refund sanctioned Period of Interest Amount of Interest Year Days 1 25.10.10 12493 11.06.19 8 229 6467 2 00053 16.11.10 250869 11.06.19 8 207 128954 3 00052 21.12.10 215137 11.06.19 8 172 109349 Total 478499 244769 1 00037 03.11.10 100000 11.06.19 8 220 51616 2 00040 12.05.11 68 11.06.19 8 30 33 3 00039 12.05.11 25343 11.06.19 8 30 12290 4 00150 07.06.11 34943 11.06.19 8 4 16796 5 00237 12.07.11 43241 11.06.19 7 333 23123 6 00247 10.08.11 44705 11.06.19 7 305 21017 7 00144 16.09.11 42647 11.06.19 7 268 19791 8 00037 25.10.11 22628 11.06.19 7 229 10356 9 00014 30.11.11 29179 11.06.19 7 193 13181 10 00358 22.01.12 5290 11.06.19 7 140 2344 11 00197 09.02.12 14015 11.06.19 7 122 6167 12 00184 31.01.12 14485 11.06.19 7 131 6396 13 00183 29.02.12 21256 11.06.19 7 103 9287 14 00185 31.03.12 12615 11.06.19 7 72 5448 15 00201 06.07.12 9152 11.06.19 6 339 4354 16 00202 06.07.12 14298 11.06.19 6 339 5944 17 00203 06.07.12 16002 11.06.19 6 339 7613 18 00199 08.02.13 4942 11.06.19 6 123 1879 Total 454809 217633 Grand Total 462402 4.5Further I find that in the similar issue, the Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any person before , on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944): . Besides, Rs 4,62,402/- is as interest of refund, was not available to them on appointed day (i.e. 01.07.2017) therefore the said amount could not have been carried forward as input tax credit under Section 140 of the CGST Act,2017. Therefore, this refund claim is not hit by the provisions of last proviso section 142(3) of CGST Act 2017. 4.3In order in original dated 18.07.2019 interest has been determined as per the table below: S. No. GAR-7 Challan No Date Amount (Rs) Date of refund sanctioned Priod of intertest Amount of Interest Year Days 1. 0051 24.12.10 718207 15.07.19 8 203 368706 4.4I find that the issue involved in the present case is no longer res-integra and is squarely covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of payment of interest under Section 11BB of the Act is concerned, emphasis has been laid on the date of receipt of application for refund. In that case, having noted that application by the assessee requesting for refund, was filed before the Assistant Commissioner on 12th January 2004, the Court directed payment of Statutory interest under the said Section from 12th April 2004 i.e. after the expiry of a period of three months from the date of receipt of the application. Thus, the said decision is of no avail to the revenue. 15.In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. B. Willowood Chemicals Pvt. Ltd. [2022 (60) G.S.T.L. 3 (S.C.)] 18. Coming back to the present cases, the relevant provision has prescribed rate of interest at 6 per cent where the case for refund is governed by the principal provision of Section 56 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent per annum on amounts that they were entitled by way of refund of tax. Since the concerned amounts along with interest at the rate of 6 per cent per annum have already been made over to them, nothing further need be done in both the cases. 4.5After taking note of decision of Hon ble High Court of Allahabad in acse of ebiz.com, Hon ble Delhi High Court has in case of Goldy Engineering Works [Order dated 14.07.2023 in WP (C) 4332/2022] observed as follows: 3. For the sake of brevity, the Court deems it apposite to notice the facts as they obtain in the writ petition filed by M/s Goldy Engineering Works vs. Commissioner of Central Excise Anr.3 On 27 July 2006, a Show Cause Notice4 is stated to have been issued to the petitioner, its proprietor, one M/S Aay Kay Engineering Works and its proprietor, in respect of certain goods which had been seized. The aforesaid SCN was followed by another SCN dated 29 January 2007 in terms of which the Department raised a demand for additional duty as well as proposing penal action again against the noticees for having violated the provisions of an exemption notification. The petitioner asserts that during the pendency of those proceedings, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or the Commissioner (Appeals) shall not entertain any appeal (i)under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii)against the decision or order referred to in clause (a) of subsection (1) of Section 35-B, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against. (iii)against the decision or order referred to in clause (b) of subsection (1) of Section 35-B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed Rupees Ten crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in abeyance. The order of stay would, in any case, be deemed to have never existed once the appeal comes to be dismissed. 25.We further note that the subject of interest on delayed refund which is governed by Section 11BB itself prescribes the starting point for payment of interest on delayed refunds to be the date when an application under Section 11B (1) is received. On a conjoint reading of Sections 11B and 11BB of the 1944 Act, therefore, we come to the irresistible conclusion that interest on delayed refund is clearly dependent upon the making of a formal application as stipulated by Section 11B of the 1944 Act. 26.We also find merit in the contention canvassed by Ms. Narain who had submitted that a refund of duty and interest paid thereon is liable to be viewed as distinct from a pre- deposit that may be made in compliance with Section 35F of the 1944 Act. The Circular of the Board too strikes an identical position when it is stated that a deposit which is made in compliance with a statutory pre-condition for the preferment of an appeal cannot be viewed as duty . It is the aforesaid aspect which appears to have weighed with the Board in proceeding to formulate its directive f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise liable to be returned. The solitary question which stands raised in these matters is the date from which that interest would flow. In Shri Jagdamba Polymers, the High Court on facts had found that the refund was inordinately delayed even though a claim for the same had been promptly lodged. This is clear from Para 7 of the report. The said decision is thus clearly not an authority for the proposition that a refund must automatically follow de hors the requirements of Sections 11B and 11BB. 31.In e BIZ, the Allahabad High Court was not dealing with a claim for refund of duty , but an amount deposited during investigation. The High Court further went on to hold that even in the absence of a statutory provision if it be found that tax or duty had been wrongly collected, it would be liable to be refunded. There cannot be a dispute regarding the aforenoted general proposition. What we seek to emphasize here is that in the present case, the issue of refund is duly regulated by two statutory provisions whose prescriptions would necessarily have to be adhered to. However, for reasons aforenoted we find ourselves unable to endorse the observation appearing in Para 34 of the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity is stayed by a superior court or tribunal, there shall be paid to the appellant interest at the rate specified in section 11BB after the expiry of three months from the date of communication of the order of the appellate authority, till the date of refund of such amount. 4.7 The decision of Jalan Con Cost Ltd. relied upon by the appellant at the time of the hearing do not decide the issue on hand it only states as follows: 14. In view of the aforesaid analysis, it is concluded that the statutory limitation period prescribed under Section 11B is not applicable to the refund claimed by the Appellant since the amount paid by the Appellant is not a tax. 15. In view of the above discussions, the present appeal is allowed. The Appellant shall be entitled to the refund amount along with interest. 4.8 I do not have any quarrel with the preposition as laid by the above order. Appellant is entitled to interest if any if the refund of the amount deposited was made beyond the period of three months from the date of refund application communicating the order in their favour to the jurisdictional Deputy/ Assistant Commissioner. 4.9 In the present case the refund applications for refund of am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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