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TMI Blog2024 (10) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... Commencement of Finance (No 2) Act, 2014. In respect of the amounts deposited post 06.08.2014, the provisions of the amended section 35 FF will be applicable and in respect of amounts deposited prior to 06.08.2014, the provisions of erstwhile section 35FF as it stood prior to date will apply. It is settle principle of interpretation that the statute should be interpreted in accordance with the words used in the statute. By circular no 1053/02/2017-CX dated 10.03.2017 Board has clarified that ' Where the appeal is decided in favour of the party/assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section35FF of the Central Excise Act, 1944 Since the said Circular has been issued without any qualification it would not be open to authorities subordinate to introduce qualification as has been sought to by the impugned order and not apply the said circular.' There are no merits in the impugned order - appeal allowed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( TECHNICAL ) Shri Gokul Holani , Advocate for the Appellant Shri A. K. Choudhary , Authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s re-adjudicated the case and confirmed the service tax demand amounting to Rs.8,21,986/- vide Order-in-Original No. 12/ADC/ST/2017 dated 23.03.2017. 2.6 Aggrieved with the said Order-in-Original, the appellant filed an appeal before Commissioner (Appeal), Allahabad and the demand was modified vide Order-in-Appeal No 1041ST/Appeal/AuditLK0/2018 dated 19.03.2018. 2.7 Aggrieved the appellant again filed an appeal before tribunal which was determined by the Final Order No. 71533/2019 dated 01.08.2019 setting aside the impugned order again and remanding the matter to original adjudicating authority. 2.8 The appellant filed a refund claim on 15.10.2019 for refund of pre-deposit of Rs. 9,20,408/- arising out of Final Order No. 71533/2019 dated 01.08.2019 passed by the Hon'ble CESTAT. Allahabad. The Assistant Commissioner, allowed the refund of pre-deposit of Rs.9,20,408/- under Section 35F of the Central Excise Act, 1944 along with interest amounting to Rs. 2,65,309/ - under Section 35FF of the Central Excise Act, 1944, as per order referred in para 1 above. 2.9 This order was challenged by revenue as per appeal filed by Review Order No.03/Review/2020 dated 20.03.2010, on the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sirous of appealing against the order shall pending the appeal deposit the duty demanded or penalty levied thereon. It may be noted that pre-deposit is of service tax and penalty and not of the interest, because interest has to be paid, in any case, for the delayed period. The right to appeal or filing of appeal itself does not waive the requirement of payment of pre-deposit and it must be paid unless it is waived or stayed The Finance Act, 2014 had substituted section 35F of the Central Excise Act, 1944 to provide for deposit of certain percentage of duty demanded or penalty imposed or both before filing an appeal. A11 pending stay applications in relation to appeals filed prior to Finance Act, 2014 would continue to be governed by statutory provisions prevailing at the time of filling such stay applications/ appeals. Therefore, in order to decide the present case the Section 35F 35FF of the Act, as it stood before the amendment and as it now stands after the amendment by Finance Act, 25 of 2014 with effect from 6.8.2014 are produced here for better appreciation of facts. Before amendment i.e. prior to 06.08.2014 35F Deposit, pending appeal, of duty demanded or penalty levied.- Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (1) of section 35B, 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 sub-section (1) of section 35B, 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: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Section 35FF. Interest on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority, unless the operation of the order of the appellate authority 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. I found it on record that in the present case, the pre-deposit was made in compliance to the Hon'ble CESTAT stay order dated 28.07.2014 and the adjudicating authority has granted the refund within the period of three months from the filling of refund application. Therefore, the respondent is not eligible for interest under Section 35FF of Central Excise Act, 1944 as the matter related to prior period i.e before 06.08.2014. Thus, the order of the adjudicating authority for granting interest is not legal proper, therefore liable to be set-aside. 4.3 The respondent has relied upon the CBIC Circular No. 1053/02/2017-CX dated 10.03.2017. I find that the said circular has been issued to clarify refund of pre-deposit for the case related to period after amendment in Section 35F 35FF of the Act w.e.f 06.08.2014. Therefore, provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Commencement of Finance (No 2) Act, 2014. In respect of the amounts deposited post 06.08.2014, the provisions of the amended section 35 FF will be applicable and in respect of amounts deposited prior to 06.08.2014, the provisions of erstwhile section 35FF as it stood prior to date will apply. 4.6 This proviso do not use the phrase amount deposited as per the erstwhile Section 35 F . Impugned order has interpreted the said proviso to read so, by referring to the proviso to the Section 35F inserted by the Finance (No 2) Act, 2002. The said proviso is reproduced below: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. The above provisions bars the application of the inserted section 35 F in cases of pending appeals and stay applications as on the date of insertion. CESTAT decided the stay application filed by the appellant vide order dated 28.07.2014 and the asked the appellant to deposit the tax demanded along with the interest. However the amounts were deposited by appellant as per the above directions of CESTAT only subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re concerned, Article 265 of the Constitution [265. Taxes not to be imposed save by authority of law - No tax shall be levied or collected except by authority of law.] prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because State cannot at their whims and fancies burden the citizens without authority of law. In other words, when competent Legislature mandates taxing certain persons/certain objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not intended by the Legislature. 22. At the outset, we must clarify the position of plain meaning rule or clear and unambiguous rule‟ with respect of tax law. The plain meaning rule‟ suggests that when the language in the statute is plain and unambiguous, the Court has to read and understand the plain language as such, and there is no scope for any interpretation. This salutary maxim flows from the phrase cum inverbis nulla ambiguitas est, non debet admitti voluntatis quaestio . Following such maxim, the Courts sometimes have made strict interpretation subordinate to the plain meaning r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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