9911796707
TMI Blog2024 (10) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ,20,408/- + Rs. 2,65,309/-) (Eleven lakh eighty five thousand seven hundred and seventeen only) in Bank Account of claimant. 2.1 Show cause notice dated 10.05.2011 was issued to appellant for recovery of Service Tax amounting to Rs.11,51,270/- and the same was confirmed by the Additional Commissioner, Central Excise, Kanpur vide Order-in-Original No. 12/ADC/ST/2012 dated 17.05.2012. 2.2 Aggrieved appellant filed an appeal before Commissioner (Appeal), Central Excise & Service Tax, Kanpur and the Commissioner (Appeal) vide Order-in-Appeal No.294-ST/APPL/KNP/2012 dated 16.11.2012 modified the Order-in-original No. 12/ADC/ST/2012 dated 17.05.2012 by confirming the demand of Service Tax amounting to Rs.7,70,407/- along with interest and penalty under Section 78 of the Finance Act 1994. 2.3 Aggrieved the appellant filed an appeal along with stay application (in terms of erstwhile Section 35F of Central Excise Act, 1944 read with Section 83 of Finance Act, 1944) before tribunal. CESTAT, vide stay Order No. SO/ST/52751/2014-CU(DB) dated 28.07.2014 stayed the Order-in Appeal subject to condition that the appellant deposit the service tax amount along with proportionate interest within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order appeal filed by the revenue has been allowed. 2.9 Aggrieved appellant has filed this appeal. 3.1 I have heard Shri Gokul Holani, Advocate for the appellant and Shri A K Choudhary, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submitted that: The entire payment was of pre-deposit in appeal filed by them in the first round of litigation was made after 06.08.2014 the date of commencement of Section 35FF as inserted by Finance (No 2) Act, 2014, so the order in original granting interest from the date of deposit cannot be faulted with; Impugned order setting aside the order in original and allowing the appeal filed by the revenue is without merits and needs to be set aside. The impugned order has been passed contrary to the principles of judicial discipline and should be set aside for this reason also in view of the decisions in the case of: Kamalakshmi Finance Corporation Ltd. [1991 (55) ELT 433 (SC)] Beena Commercial Corporation [1993 (68) ELT 569 (Bom)] Ramnath Housing Pvt Ltd [Final Order No ST/293/2011 dated 19.07.2011. Impugned order is non speaking as it does not consider the cross objections filed by them. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to such conditions as he or it may deem fit to impost so as to safeguard the interests of revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. 35FF Interest on delayed refund of amount deposited under the proviso to section 35F. - Where an amount deposited by the appellant in pursuance of an order passed by the Commissioner (Appeals) or the Appellate Tribunal (hereinafter referred to as the appellate authority), under the first proviso to section 35F, is required to be refunded consequent upon the order of the appellate authority and such amount is not refunded within three months from the date of communication of such order to the adjudicating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 35FF as it stood before the commencement of the said Act. 4.2 On perusal of aforementioned Sections of the Central Excise Act, 1944, it can be seen that there is specific provision " provided that the amount deposited under section 35F, prior to the commencement of the Finance (No.2) Act, 2014, shall continue to be governed by the provisions of Section 35FF as it stood before the commencement of the said Act". In this case, although I find that the amount of deposit under section 35F is later to 06.08.2014, however, it is also a fact that proviso clearly states that "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". I find that in the present case appeal has been filed before the Hon'ble CESTAT Allahabad and also pre-deposit was made in compliance to the Stay order dated 28.07.2014 of the Hon‟ble CESTAT Allahabad before amendment in Section 35F & 35FF of the Act by Finance Act, 25 of 2014 with effect from 6.8.2014. Therefore, interest liability is to be decided as per provisions of Section 35FF of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70,408/-) for filing appeals before CESTAT, Allahabad i.e. 08.01.2015. Date of Pre-deposit (Interest = Rs 1,50,000/-) for filing appeals before CESTAT Allahabad i.e. 17.01.2015 S No Year Number of Days for Rs. 7,70,408/- (Rs. 4,00,547/- + 2,87,795/- 82,066/-) Year Number of Days for Rs. 7,70,408/- 1 2015 (from 08.01.2015 to 31.12.2015) 358 2015 (from 17.01.2015 to 31.12.2015) 349 2 2016 365 2016 365 3 2017 365 2017 365 4 2018 365 2018 365 5 2019 (from 01.01.2019 to 29.10.2019) 302 2019 (from 01.01.2019 to 29.10.2019) 302 Total 1755 1746 4.4 From the above, it is evident that the entire amount was deposited by the appellant on 08.01.2015 and 17.01.2015 which has been claimed as refund by the appellant. There is no dispute in respect of the deposit made or the date of deposit. At least impugned order do not record any other date of pre-deposit. It is not even the case of revenue that these amounts have been deposited prior to 06.08.2014 i.e. the date of commencement of Finance (No 2) Act, 2014. 4.5 Though impugned order has reproduced the entire Section 35 FF, but only proviso to the said section, is relevant for the resolution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, the Courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. 20. In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes. Nevertheless, if the plain language results in absurdity, the Court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative purpose [Assistant Commissioner, Gadag Sub-Division, Gadag v. Mathapathi Basavannewwa, 1995 (6) SCC 355]. Not only that, if the plain construction leads to anomaly and absurdity, the Court havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
