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TMI Blog2024 (11) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... been set aside and the fact is that the Department has earned interest during the period the currency was retained by it, it was held that payment of interest could not be denied merely for the reason that there is no express statutory provision. Bombay High Court also in the case of Union of India Vs. M P Desal [ 2019 (3) TMI 550 - BOMBAY HIGH COURT] has held that amount seized in cash by the authorities is to be refunded along with the interest. Though in this case the rate of interest was held to be simple at the rate of 8%. There already has been decisions of Sony Pictures Networks India Pvt. Ltd. [ 2017 (5) TMI 864 - KERALA HIGH COURT] wherein the decision of Hon'ble Apex Court in the case of Kuil Fireworks Inds [ 1997 (9) TMI 105 - SUPREME COURT] is relied and it was held that rate of interest while refunding the amounts has to be 12% of the amount refunded. We hold that 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 refund. As the amount in question was not deposited under Section 35F, however is akin to predeposit for the reasons as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as refused to interfere in the matter and dismissed the civil appeal of the department. Pursuant to the said order, the appellant filed a refund claim of Rs.8 ,81,20,922/-on 10.01.2019 submitting that the said amount was paid under protest. The refund of said amount has been sanctioned vide order in original number 08/ 2021 22 dated 29.09. 2021 however, it is held as follows : I find that the party is not eligible for the interest on refund amount claimed as party s refund claim is sanctioned well within time after submission of all requisite documents by the party and section 11BB of Central Excise Act, 1944 with respect to interest in the case of instant refund claim is not applicable in the instant case. 1.2 The appeal against the said order has been dismissed vide Order-in-Appeal dated 31.03.2022, as mentioned above. Being aggrieved, the appellant is before this Tribunal. 2. We have heard Siri P. K. Sahu, learned Advocate for the appellant and Sri S. K. Meena, learned Authorized Representative for the department. 3. Ld. Counsel for appellant submitted that the commissioner (Appeals) was of the opinion that refund could not be granted as long as the revenue has filed an appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said section, wherein the interest rate has been specified to be not below 10% and not exceeding 36% per annum as the Central Government, by notification in the Official Gazette fix. (b) Section 11BB of Central Excise Act deals with the interest on delayed refunds under Section 11B (2). We observe that Section 11BB of the Central Excise Act states that if any duty orderd to be refunded under sub-section (2) of Section 11B is not refunded within three months from the date of receipt of the application then the applicant shall be entitled to interest after the expiry of three months from the date of receipt of the application at such rate not below 5% and not exceeding 30% as may be notified by the Central Government in the Official Gazette. (c) Perusal of Section 11DD provides that where an amount has been collected in excess of 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 10% and not exceeding 36% per annum as is for the time being fixed by the Central Excise, by notification in the Official Gazette. (d) Section 35FF of Central Excise Act also talks about the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 on the refund amount from the date of deposit till the date of payment thereof. 5.5 We further observe that Hon ble Supreme Court also in the case of Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre- deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable unless such order is stayed by a competent Appellate Authority. 5.4 In the event of a remand, refund of the pre-deposit shall be payable along with interest. 5.5 In case of partial remand where a portion of the duty is confirmed, it may be ensured that the duty d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso in the case of Union of India Vs. M P Desal reported as 2019 (366) ELT 251 (Bom) has held that amount seized in cash by the authorities is to be refunded along with the interest. Though in this case the rate of interest was held to be simple at the rate of 8%. However, there already has been decisions of Kerala High Court in the case of Sony Pictures Networks India Pvt. Ltd. Vs. UOI reported as 2017 (353) ELT 179 (Ker) wherein the decision of Hon'ble Apex Court in the case of Kuil Fireworks Inds. Vs. Collector reported as 1997 (95) ELT 3 (SC) is relied and it was held that rate of interest while refunding the amounts has to be 12% of the amount refunded. 5.8 We also draw our support from the decision of Hon ble Apex Court in the case of Sandvik Asia Ltd. which is now the law 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another in order that thereby the person damnified may receive equal value for his loss, or be made whole in respect of his injury; the consideration or price of a privilege purchased; some thing given or obtained as an equivalent; the rendering of an equivalent in value or amount; an equivalent given for property taken or for an injury done to another; the giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; a recompense in value; a recompense given for a thing received recompense for the whole injury suffered; remuneration or satisfaction for injury or damage of every description; remuneration for loss of time, necessary expenditures, and for permanent disability if such be the result; remuneration for the injury directly and proximately caused by a breach of contract or duty; remuneration or wages given to an employee or officer. The Hon ble Apex Court thus held that the assessee is entitled to claim interest from the date of payment of initial amount till the date its refund. 5.9 Following the said law of land, we hold that the appellants are entitled to claim the interest on the amount as has been refunded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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