9911796707
TMI Blog2025 (1) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, as per him, it is a case of Final Assessment. Thus, for all purposes, it is a mere case of rectification in view of the decision of the Tribunal and also to follow the procedure of Gangdhar Supreme Court ruling and the CBIC's circular 04/2012 Cus dated 17.2.2012. Whether this is a case of Section 154 - Rectification of the Finally assessed order as is being claimed by the Revenue or is a case of finalization of assessment as is being claimed by the appellant? - HELD THAT:- Since lot of discussion has taken place and Tribunal and High Court have held that it is a case of "omission" and the rectification is required to be carried out, we take the view that it is a case of Section 154. Since the rectification was required to be carried out for the period 2007-2008 and all the documents were available with the Revenue by May 2009 itself, the Rectification should have been carried out based on the request made on 01.10.2009. No attempt was made to take up this request. Even after this matter reached the Commissioner (Appeals) and it was held by him that the issue will call for rectification under Section 154, his order was not followed - the Adjudicating authority has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Orders and Tribunal orders holding that 'rectification' under Section 154 also emanate basically from this OIA dated 11.10.2010 - 11.10.2010 should be taken as the date on which the 'consequential refund' would accrue. Since the supporting documents were already available with the Revenue on 26.05.2009 [when the first letter was filed] and on 01.10.2009 [when the rectification request letter was filed], the Revenue could have completed the rectification/re-assessment within 3 months from 11.10.2010 [OIA order date]. After allowing the 3 months from 11.10.2010, the interest would be payable from 11.01.2011. The Revenue is directed to pay the interest from 11.01.2011 till 05/06.09.2023, the date on which the refund was paid. If the interest is payable what would be the rate of interest to be paid? - HELD THAT:- In the present case, the Export Duty was paid at the time of Exports and the excess Export Duty paid remained with the Revenue till it was refunded. In the OIO , it has been held that the appellant was not required to pay the Export Duty @ Rs.300 PMT and was required to pay the same @ Rs.50 PMT only. Thus the amount retained by the Revenue would be akin to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r agreement with foreign customer, the Exported Iron Ore testing to be carried out and Test Report to be given by the accredited agencies, which again should be acceptable to the Customs. This is a time consuming process. In order to avoid delay in exports, they have paid Export Duty @ 300 PMT. On 18.05.2009 [acknowledged on 26.05.2009], they have submitted their letter individually for these Shipping Bills citing there with the relevant Supreme Court's order and enclosing therewith the Final Invoice, Load Port Test Report from the accredited Testing Agency etc., requesting the Customs officials to Finalize the provisionally assessed Shipping Bills. 3. After this, the case had a chequered history, having travelled between Orders passed by the Departmental officials, High Court and Tribunal, finally with the Final Re-assessment cum Refund Order was passed on 05.09.2023, granting them the refund of differential Export Duty of Rs.6,93,69,000. However, no interest was granted for the excess Export Duty paid by the appellant at the time of export. Being aggrieved, the next round of litigation started, wherein the Adjudicating authority has rejected their claim for interest on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a request to allow benefit of Notification No. 62/2007 dt 03.05.2007. 12. Representation by filing of CP Gram through PG Portal for non-issuing of Order after PH. 24.04.2015 CBOEC/E/2015/00893, for implementation of Comm Appeals order 13. Order in Original dated 11.05.2015 11.05.2015 Received on 25.06.2015, rejected the request for Assessment / Re-assessment/ Rectification, dishonoring Hon'ble Supreme Court / CBIC direction issued vide Circular No. 04/2012 dated 17.02.2012 14. Writ Before Hon'ble High Court for accepting the request of rectification 25.06.2015 for having efficacy of resolution. 15. Rejection by High Court (Appeals) 10.09.2015 Hon'ble Court did not accept Writ petition and directed to go through normal process. 16. Filing of Appeal again before The Commissioner (Appeals) 28.09.2015 Submitted by Hand 17. PH before Commissioner (Appeals) 10.12.2015 Submitted all the justification for Assessment Finalisation and Rectifications 18. Commissioner Appeals Order 13.05.2016 Rejected the request without quoting his findings. 19. Appeal before Hon'ble CESTAT 08.08.2016 Appeal filed against Order in Appeal 20. Misc. Application for Early Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connected application also stands dismissed, basis not find any question of law, far less to speak of substantial question of law, involved in the instant appeal. 31. Writ Petition before Hon'ble High Court, registered as WPO/636/2023 06.07.2023 Aggrieved by rejection order the Company have filed Writ Petition before Hon'ble High Court of Kolkata. The Hon'ble High Court of Kolkata has accepted the same and after going through facts and circumstances and hearing the both sides, vide its order dated 06.07.2023, set aside the said refund order while confirming that- the adjudicating authority was bound to carry the aforesaid order of the Tribunal in its letter and spirit and the impugned order-in original is not only a factual error it is a jurisdictional error and error in law since it is contrary to the decision of the Supreme Court and… the aforesaid impugned order in original dated 5th January, 2023 is not sustainable in law and is set aside and the matter is remanded back to the adjudicating authority concerned to implement the aforesaid order of the Tribunal dated 28th July, 2022 strictly as per findings, observations and directions given by the learned Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder in Appeal 28.07.2024 OIA No. KOL/CUS(PORT)/KS/451/2024 dated 18.07.24 is issued allowing interest treating prescribed time limit from date of CESTAT final Order i.e. 28.07.2022 44. Request for implementation of OIA dated 18.07.2023 02.08.2024 Submission of request letter for implementation of OIA dated 18.07.2023 with copy of OIA. 45. Appeal before Hon'ble CESTAT 19.10.2024 Appeal filed before CESTAT - C/76391/2024 46. Misc Application for Early Hearing 10.12.2024 EHP Allowed vide order dated 12.12.2024 47. Reminder Request for implementation of OIA dated 18.07.2023 12.12.2024 Reminder submitted with earlier letter copy and OIA. 48. PH before Hon'ble CESTAT 18.12.2024 PH attended by CA Mukesh Laddha 5. The Ld CA submits that having no response whatsoever was received from the Dept. to their letter dated 18.05.2009, to finalize their assessment based on all the documents submitted therein. Then as a matter of abundant precaution, the appellant vide their letter dated 01.10.2009 [after 5 months from their initial letter dated 18.05.2009], Acknowledged on 20.10.2009, sought Rectification of Shipping Bills in terms of Section 154 of the Customs Act 1962. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing opportunity to the appellant. 11. The appeal is allowed on the above terms. 6. Even after the above clear order passed by the Commissioner (Appeals), no effort was made by the Department to complete the assessment proceedings. The Ld CA also submits that no further Appeal was filed against this OIA by the Revenue before the Tribunal. Thus the decision of the Commissioner (Appeals) had attained finality and the officials were bound to complete the rectification / assessment as per this Order, which was not taken up for the next more than 3 and half years. Personal Hearing held on 12.06.2014, but no Order was passed. Then application was made through CPGRAM on 24.4.2015, for not having received the Order. Finally, an Order was passed on 11.05.2015, rejecting the request of rectification. Being aggrieved, the appellants filed a Writ Petition before the Calcutta High Court on 25.06.2015, which came to be dismissed on 10.09.2015, by the Hon'ble High Court for seeking alternate remedy. After rejection of the appeal by the Commissioner (Appeals), the Appeal was filed before the Tribunal on 08.08.2016. 7. The Tribunal, vide Final Order No.75404/2022 dated 28.07.2022, held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a period of eight weeks from the date of communication of this order by passing a reasoned and speaking order after giving opportunity of hearing to the petitioner or its authority representative. 11. After the High Court's Order dated 6.7.2023, the appellant submitted follow up letters on 24.07.2023 and 13.07.2023. Thereafter on 17.08.2023 a letter was sent by the Asst Commissioner seeking the copies of documents, which was replied on the same date while submitting the requested documents. Thereafter Reassessment cum refund Order No. OIO No. KOL/CUS/AC/PORT/EXPORT/489/2023 dtd 05.09.2023 was passed, granting refund of Rs.6,93,69,000, without granting any relief on account of the interest on this amount. The Ld Consultant submits that the consequential relief mentioned in the CESTAT's Order dated 28.07.2022, would naturally include the interest for the amount of refund along with interest for all the years during which the Revenue kept the final assessment pending without finalising the same. The Asst Commissioner vide OIO No. KOL/CUS/AC/PORT/Export(REF)/ 638/2023 dated 28.11.2023 rejected the interest claim request basis the refund has been paid with in 8 weeks as directed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 05.01.2023. The appellant had to once again approach High Court. The Hon'ble High Court passed the order on 6.7.2023, clearly stating that the Adjudicating authority is bound by the Final Order passed by the Tribunal. Only thereafter, on 05.09.2023, the appellant was granted the refund of Export Duty, without any consideration whatsoever to the interest part. This process has again taken 1 year 2 months from the date of the Tribunal's order, wherein in between on adverse order was also passed, ignoring the directions of the Tribunal. For the non-granting of consequential interest, the appellant had once again to approach the Commissioner (Appeals), who vide the impugned OIA dated 28.07.2024 has granted only partial interest. Almost one year has been lost in this process. He submits that, the documents submitted on 18.05.2009 towards finalization, were the documents based on which the present finalization / re-assessment has been completed by the Adjudicating authority. In spite of having these documents on that date itself, the same were called for several times and each time the appellant has provided the same. Therefore, it is not the case of the Dept. that the appellant has de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 18. In view of the above submissions, he prays the appeal may be allowed holding that the interest @ 12% per annum is payable from 18.05.2009. 19. The Ld AR appearing on behalf of the Revenue, reiterates the findings of the lower authorities. He makes submits makes the following submissions : (a) As per the Dept's contention, the assessment was never provisional and it was final for all purposes. Therefore, having paid the Export Duty, without filing any letter to the effect that they are opting for Provisional assessment, the appellant cannot claim that assessment has not been completed. (b) Having not indicated that he is opting for provisional assessment, in case he was aggrieved, he should have filed an appeal within the time specified challenging the final assessment. (c) The present assessment is only in terms of Section 154 as per the directions of the High Court / Tribunal. Hence, in this case, there being no provision to seek any interest, the same cannot be paid to the appellant. (d) On the other hand, even if it is taken that the provisional assessment has been finalized now, still no interest is required to be paid as Section 18(4) mandates payment of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tars Pioneer 8764 05.02.2008 25000 63.5 9 57.79 63.66 7.87 58.65 8 MV Themera 8979 13.02.2008 25000 63.5 9 57.79 63.82 7.64 58.94 9 MV Tharsyvovlos 9389 29.02.2008 25000 63.5 9 57.79 63.76 6.2 59.81 10 MV Good Purpose 7096 12.12.2007 25000 63.5 9 57.79 63.85 7.07 59.34 11 MV Prabhu Daya 7083 10.12.2007 25000 63.5 9 57.79 63.85 7.44 59.10 12 MV Captain George II 9898 17.03.2008 22000 63.5 9 57.79 63.86 5.73 60.20 Total Qty 300000 (2) From the above table, it is seen that the appellant has uniformly claimed Fe content on WMT basis showing the same as 63.5% and moisture content of 9% in all the cases. When the same is compared with the Load Port Test Reports, it is seen that no two moisture content figures or two WMT figures would be same. Thus it gets clarified that from consignment to consignment the moisture content and resultant WMT would be different. (3) The very basis for levying the Export duty is the Fe content. If the process of proving the Fe content before exporting, as the Iron ore is required to be tested and its result is to be accepted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) arithmetic The lower authority has not rendered any decision whether the case of the appellant is covered by error arising from accidental slips and errors arising from accidental omissions. The lower authority is thus required to render decision on this as well. 10. In the case of Bennet Coleman & Co. Ltd.(supra) the Tribunal has held that when the goods are assessed to higher customs duty on account of omission by the assessing officer to take note of the customs notification, the same cannot be corrected under section 154. So also, was the View of the Tribunal in the case of G.S. Metalica (supra). Thus in terms of the Court and the Tribunal decisions, where assessments have not been done properly, the same may be rectified by invoking powers under section 154. Thus the assessing officer was duty bound to correctly apply the law laid down by the Supreme Court and determine the Fe content based on the weight of the ore exported including the Weight of the moisture, all details of which were available in the stuffing bills/supporting documents, Since no such determination has been made by the assessing authority, the same shall be done. After setting aside the decision under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs being taken under Section 35E(1) or (2) to keep the interests of the department alive. If the officer's view is the correct once it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail." 8.............We would like to say that the department should take these observations in the proper spirit. The observations of the High Court should be kept in mind in future and utmost regard should be paid by the Adjudicating Authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them. " (12) Unfortunately, when this OIO was agitated before the Commissioner (Appeals), he has ignored the fact that the Adjudicating authority has gone on his own tangent without following the directions of the Commissioner (Appeals). Thus the OIO, which should been held as void ab intio got a legal sanction by the order passed by the Commissioner (Appeals) vide OIA No. Kol/Cus(Port)/SS/132/2016 dated 13.05.2016 (13) This lead to the appellant having to approach the Tribunal to get the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 1997 (89) ELT 19 (S.C.) was to be applied to determine Fe content on the basis of exported weight of Iron Ore Fines, which would include the weight of the moisture in The it. Commissioner (Appeals) had categorically observed that the assessing officer had assessed the duty not on the basis of gross weight (including the weight of the moisture), but had determined the Fe content on dry/wet basis. This itself clearly indicates that the order of Assistant Commissioner was not in order and that the same was rectifiable within the meaning of Section 154 ibid. In the said Order-in- Original dated 11.05.2015, the Assistant Commissioner has himself observed at Paragraph 7 that as per record, the Department did not file any appeal against the said order of the Commissioner (Appeals). 6. The only take-away from the above is that the correct Fe content was required to be determined on the basis of the guidelines contained in the judgement of the Hon'ble Apex Court in the case of Gangadhar Narsingdas Aggarwal (supra). The same having not been done here, in the case on hand, it is clear to us that the order of First Appellate Authority dated 06.10.2010 is correct. It is the sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llip;…………Mr. Maity is very much critical on the observations of the Tribunal to the extent of applicability of the ratio laid down therein as, according to him, the scope and powers of the authority vested under Section 154 of the said Act do not permit each and every kind of omission or error arising from an accidental slip to re-visit the order of assessment passed by the competent officer but must be restricted to such error as envisaged by legislatures while legislating the said Act. According to Mr. Maity, both the appellate authority on earlier occasion as well as the Tribunal have exceeded the jurisdiction and/or expanded the definition of 'omission' which runs counter to the spirit and soul of the said Section and, therefore, there is no impediment on the part of the department to agitate the said point in the instant appeal. Though the submissions advanced by Mr. Maiti at the first blush appear attractive, but after going through the orders passed in the proceedings which is pending for more than a decade, we could not persuade ourselves to agree with the argument advanced by Mr. Maity for the reasons indicated hereinbelow. The respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass. The error is perceived from the omission or the accidental slip and therefore, the word "omission" should not be given a restrictive meaning but should be expanded to imbibe within itself an error occurred because of such omission. We do not delve to go much deep into the above aspect for the simple reason that the authorities have accepted the order of remand passed by the appellate authority on the first occasion and proceeded thereupon and therefore, it is too late in the day to take such a plea at an advance stage of the litigation which, in our opinion, is practically a second round of litigation, though commenced from the original cause. The appeal is, thus, dismissed. Consequently, the connected application also stands dismissed. (15) Against the. OIO No. KOL/CUS/DC/PORT/08/ EXPORT(REF)/2023, Refund order No 01/2023 dated 05.01.2023 issued for rejecting the refund claim, the appellants had to knock the doors of High Court again. The Hon'ble High Court vide their Order dated 6th July 2023 held as under : It appears from record that the respondent Customs Authority being not satisfied with the aforesaid order of the Tribunal had challenged the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court by neither interfering with nor setting aside the same, the adjudicating authority was bound to carry the aforesaid order of the Tribunal in its letter and spirit and the impugned order-in-original is not only a factual error it is a jurisdictional error and error in law since it is contrary to the decision of the Supreme Court upon which even the first appellate authority in the first round has relied and held in favour of the petitioner and for the same reasoning the Tribunal has remanded the matter back by its aforesaid order. Considering the facts and circumstances of the case and the discussion made above, I am of the considered view that the aforesaid impugned order in original dated 5th January, 2023 is not sustainable in law and is set aside and the matter is remanded back to the adjudicating authority concerned to implement the aforesaid order of the Tribunal dated 28th July, 2022 strictly as per findings, observations and directions given by the learned Tribunal in the aforesaid order and particularly giving relief to the petitioner as per Notification No.62/2007-Cus dated 03.05.2007 as per paragraph 8 of the aforesaid order of the Tribunal, within a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Copies of all the Load Port Test Reports CLPTRs] Self Certified Copies of Discharge Port Test Reports [total 05 Nos.] • Self Certified Copies of all the Contracts 24. On examination of all the 12(twelve) impugned Shipping Bills, it is seen that the exporter had self-declared therein, the Fe contents as 63.50% on dry basis with moisture content @ 9%. But the assessing officer, while determining in which category the iron ore fines (under exportation) would fall, had ignored the declared moisture content and had only considered the declared Fe content as 63.50% and in this way, had assessed the full rate of duty i.e. @ Rs. 300.00 per MT on the Gross/total weight. Here, it is on record that the declared Fe content @ 63.50% was excluding moisture and was in no way related to the total weight/gross weight (inclusive of moisture) exported on which duty was charged. 25. But as per the prescription of the Hon'ble apex court as made in the case of Gangadhar Narshingdas Aggarwal, such declared moisture content was to be duly considered and Net Fe content on Wet Metric Ton basis [i.e. on Gross/Total weight basis-inclusive of moisture] was to be calculated for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest, (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Comn7issioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest 39.So far the issue of unjust-enrichment as prescribed in sub-section (IA) of Section 27 of the Customs Act, 1962 is concerned; the exporter has already submitted Certificates from Independent Chartered Accountant to the effect that the incidence of such amount of excess duty paid has not been passed on by the exporter to any person. Further, it is a case of payment of export duty. 42. In view of the discussions and observations as detailed in the preceding paras, I find the following: (a) There were errors in the assessments of the impugned shipping bills in so far as full rate of export duty @ Rs. 300.00 per WMT was charged therein without following the judgment of the Hon'ble Supreme Court in the case of Gangadhar Narshingdas Aggarwal. (b) Considering the Fe content so calculated on WMT basis as per the guidelines as prescribed in the aforesaid Judgment of the Honble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022-23/ Date: 05/08/2022 reads as under : Sub: Request to implement Hon'ble CESTAT, Kolkata Final Order No. 75404/2022 dated 28.07.2022 and disbursement of pending refunds of Rs. 6,93,69,000/-. (c) The formal Form 102, filed by the appellant along with this covering letter, is not even required to be filed, since the refund is only a consequential action after the rectification is carried out. Therefore, the Adjudicating authority is in error in taking this date 05.08.2022 as the date of formal filing of Refund claim, ignoring their very first letter dated 18.05.2009 submitted on 26.05.2009, seeking assessment based on the Test Reports and other documents and refund of the excess duty paid / collected. (d) The Adjudicating authority in his order OIO dated 05.09.2023 himself holds at Para 24 that the assessing officer has ignored the moisture content. At para 26 he observes that the assessing officer has not followed the decision of the Supreme Court in the case of Gangadhar to consider the moisture content. While he cites the Tribunal and High Court about their holding that Section 154 would be applicable, he conveniently ignores the identical noting / decision by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f "omission" and the rectification is required to be carried out, we take the view that it is a case of Section 154. Since the rectification was required to be carried out for the period 2007-2008 and all the documents were available with the Revenue by May 2009 itself, the Rectification should have been carried out based on the request made on 01.10.2009. No attempt was made to take up this request. Even after this matter reached the Commissioner (Appeals) and it was held by him that the issue will call for rectification under Section 154, his order was not followed. 29.From the detailed analysis of the OIO No. KOL/CUS/AC/PORT/EXPORT/489/2023 dtd 05.09.2023, we find that the Adjudicating authority has also gone on to decide the issue in terms of Section 154 and has cited the provisions of Section 27 while granting the refund. 30. After careful analysis of the entire factual matrix, considering the chronological events, finally culminating with the appellant getting the refund, we find that the appellant's letter dated 18.05.2009 [submitted on 26.05.2009], attains the status of the refund claiming letter. After much follow up the request for 'rectification' was rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of expiry of three months from the date of receipt of application for refund or on the expiry of the said period from the date on which the order of refund is made? The appellant filed certain claims for rebate of duty, amounting to Rs.4,84,52,227/- between April and May 2003. However, the Assistant Commissioner of Central Excise, vide order dated 23rd June 2004, rejected the claim. Aggrieved, the appellant filed an appeal before the Commissioner, Central Excise (Appeals), who by his order dated 30th September 2004 allowed the appeal and sanctioned the rebate claim. Being aggrieved by the said order, the revenue filed an appeal before the Joint Secretary, Government of India, Ministry of Finance, but without any success. Ultimately rebate was sanctioned on 11th January, 2005. On 21st April 2005, appellant filed a claim for interest under Section 11BB of the Act on account of delay in payment of rebate Section 11BB, the pivotal provision, reads thus: "11BB. Interest on delayed refunds.- If any duty ordered to be refunded under sub- section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. 11. At this juncture, it would be apposite to extract a Circular dated 1st October 2002, issued by the Central Board of Excise & Customs, New Delhi, wherein referring to its earlier Circular dated 2nd June 1998, whereby a direction was issued to fix responsibility for not disposing of the refund/rebate claims within three months from the date of receipt of application, the Board has reiterated its earlier stand on the applicability of Section 11BB o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund but the relevant date is to be determined with reference to date of application laying claim to refund. The non- payment of refund to the applicant claimant within three months from the date of such application or in the case governed by proviso to Section 11BB, non-payment within three months from the date of the commencement of Section 11BB brings in the starting point of liability to pay interest, notwithstanding the date on which decision has been rendered by the competent authority as to whether the amount is to be transferred to Welfare Fund or to be paid to the applicant needs no interference." 14. At this stage, reference may be made to the decision of this Court in Shreeji Colour Chem Industries (supra), relied upon by the Delhi High Court. It is evident from a bare reading of the decision that insofar as the reckoning of the period 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt against an order of the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] [Inserted by Act 22 of 1995, Section 55 (w.e.f. 26.5.1995). ][under sub-section (2) of section 27, the order passed by the Commissioner (Appeals), Appellate Tribunal [, National Tax Tribunal] [Inserted by Act 22 of 1995, Section 55 (w.e.f. 26.5.1995). ] or, as the case may be, by the Court shall be deemed to be an order passed under that sub-section for the purposes of this section.] 36.A careful reading of Section 11BB of the CEA 1944 and 27B of the Customs Act 1962, clarifies that they are para materia. 37. Reverting to the factual matrix of this case, the important dates in the entire case would be as under : Event Period / Date Delay from 26.05.2009 Export Duty paid @ Rs.300 PMT 05.06.2007 to 17.03.2008 NIL Request for Finalization 18.05.2009 /26.05.2009 NIL Request for rectification u/s 154 01.10.2009/ 20.10.2009 NIL Rejection of Rectification request 04.06.2010 1 Year OIA allowing rectification/ remanding 11.10.2010 1 Year P H before AC 12.06.2014 5 Years Order In Original rejecting rectification 11.05.2015 6 Years OIA rejecting rectification 13.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a decision of this Court and ought to be reversed? E. Whether the High Court ought to have held that sections 240 and 244 of the Act refer to 'refund of any amount', which phrase clearly includes any amount (including interest) due by the Income Tax department to the assessee, and hence the appellant was entitled to interest on the delay in the payment of amounts due from the Incometax department ? Provisions of Income Tax Act : 243. Interest on delayed refunds. (1) If the Income-tax Officer does not grant the refund (a) in any case where the total income of the assessee does not consist solely of income from interest on securities or dividend, within three months from the end of the month in which the total income is determined under this Act, and (b) in any other case, within three months from the end of the month in which the claim for refund is made under this Chapter, the Central Government shall pay the assessee simple interest at (twelve) per cent per annum on the amount directed to be refunded from the date immediately following the expiry of the period of three months aforesaid to the date of the order granting the refund. Explanation : If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. It is a case of the appellant as set out above in the instant case for the assessment year 1978-79, it has been deprived of an amount of Rs.40 lakhs for no fault of its own and exclusively because of the admittedly unlawful actions of the Income Tax Department for periods ranging up to 17 years without any compensation whatsoever from the Department. Such actions and consequences, in our opinion, seriously affected the administration of justice and the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. The subsequent events resulting in the High Court Orders and Tribunal orders holding that 'rectification' under Section 154 also emanate basically from this OIA dated 11.10.2010. Therefore, we hold that 11.10.2010 should be taken as the date on which the 'consequential refund' would accrue. Since the supporting documents were already available with the Revenue on 26.05.2009 [when the first letter was filed] and on 01.10.2009 [ when the rectification request letter was filed], the Revenue could have completed the rectification/re-assessment within 3 months from 11.10.2010 [OIA order date]. After allowing the 3 months from 11.10.2010, the interest would be payable from 11.01.2011. We direct the Revenue to pay the interest from 11.01.2011 till 05/06.09.2023, the date on which the refund was paid. 44. The next question to be addressed is as to what would be the rate of interest. In the present case, the Export Duty was paid at the time of Exports and the excess Export Duty paid remained with the Revenue till it was refunded. In the OIO , it has been held that the appellant was not required to pay the Export Duty @ Rs.300 PMT and was required to pay the same @ Rs.50 PMT only. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2023 [SM] Final Order No.58537/2024 dated 6.9.2024 The Delhi Tribunal has held as under : The Appellant was made to deposit Rs.50,00,000/- involuntarily under threat of arrest during investigation on 18.03.2014. 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. 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. 7. These observations when seen in the light of above quoted decisions, it is clear that Section 11B/11BB of Central Excise Act is not applicable to the given set of circumstances. This Tribunal in the case of M/s. Parle Agro Pvt. Ltd. Vs. Commissioner, GST (supra), wherein following findings have also been endorsed: "30. In the present case, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the amount of interest @ 12% per annum forthwith. "8. Considering the rival contentions, this appeal by the Revenue is dismissed. Further, it is directed that the Adjudicating Authority shall disburse the amount of interest @12% per annum forthwith, within a period of 45 days from the date of receipt of the copy of this order, as held by Division Bench of this Tribunal in Parle Agro (P) Ltd., (supra)." 19. Consequent to the entire above discussion, the findings of the order under challenge are upheld with respect to holding appellant entitled for getting refund of the amount along with interest. However, it is held that the appellant is entitled to have interest on the amount of refund sanctioned at the rate of 12% per annum to be calculated from the date of the deposit of the amount till the date refund thereof. Resultantly, the present appeal is hereby allowed. 45. As per the ratio laid down in the above case laws, we hold that the appellant is eligible to get the interest @ 12% per annum from 11.01.2011 to 5/6.09.2023 46.To summarize our decision : (a) Whether the assessment is Provisional, as is being claimed by the appellant or is Final, as is being claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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