TMI Blog2024 (4) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... SSIONER OF INCOME-TAX AND OTHERS [ 2006 (1) TMI 55 - SUPREME COURT] , wherein the Hon ble Court examined the scope of Sec 243 of the Income Tax Act, which provides for interest on delayed refund and also examined Sec 35FF of Central Excise Act, which also provides for interest on delayed refund of amount deposited under Sec 35F (Pre-deposit) and observed that the provisions for grant of interest on delayed refund are pari materia under both the Acts. The Apex Court, taking notice that the assessee/Sandvik Asia Ltd have suffered as their money was lying locked in litigation, withheld by the department for about 17 years without rhyme or reason, and further taking notice that the Revenue charges much higher rate of interest on the amount payable by the assessee, and whereas, pays interest at much lower rate on the amount refundable to the assessee, further observing that interest is compensatory in nature, was pleased to grant simple interest @9% per annum and failing which, to pay further interest @15% per annum. Following the said ruling of Hon ble Supreme Court, the Division Bench of this Tribunal in Parle Agro Ltd have allowed the interest @12% per annum from the date of deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.03.2009 as per BERC. The deposit(s) were made in December 2009 - the doctrine of unjust enrichment is not attracted in the facts and circumstances of the instant case, as the appellant- exporter have discharged the onus under Sec 28D of the Act. The impugned order modified directing to grant interest @6% per annum from the date of deposit till the date of refund - appeal of assessee allowed in part. - HON'BLE MR. ANIL CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. A.K. JYOTISHI , MEMBER ( TECHNICAL ) Shri Hari Radha Krishna , Advocate for the Assessee Shri M. Anukathir Surya , AR for the Revenue ORDER [ Order per : ANIL CHOUDHARY ] The issues in these cross appeals are as follows : i) In Appeal No. C/30427/2023, the issue is whether grant of interest has been rightly refused on the amount deposited during investigation, which was subsequently found to be refundable and; ii) In Appeal No. C/30448/2023, filed by Revenue, the issue is whether unjust enrichment is attracted on the principle amount of refund granted, which was deposited during the course of investigation. As both these appeals arise from common impugned OIA, they are taken up together for hearing and disposal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o re-assess the export duty and recover the differential duty at Rs.250 per MT under the proviso to Section 28(1). It also proposed to recover interest under Section 28AB of the Customs Act, 1962, and to hold that the exported goods were liable for confiscation under Section 113(i) of the Customs Act and impose penalties on the exporter under Section 114(ii)/ 114A of the Customs Act. It further proposed to impose penalty on Shri Agrawal, the Director of the exporter. The SCN also contained a proposal in Para 17(e) that the amount of Rs.1,18,12,250/-, voluntarily paid by the assessee under protest should not be adjusted towards the amount demanded. 6. The said SCN, pursuant to OIO No.09/2011 dt.30.12.2011 and thereafter, in Customs Appeal No. 283/2012, filed by the appellant company with Customs Appeal No. 284/2012, filed by the Director Mr. Anand Kumar Agarwal, was allowed by this Tribunal vide Final Order No. A/30083-30084/2022 dt.06.09.2022, whereby this Tribunal held as follows: 16. In this case, we do not find any collusion or wilful misstatement or suppression of facts or even any duty liability because the entire demand has been made only by applying the test reports which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been appropriated by the Adjudicating Authority upon adjudication. He also observed that Revenue has not brought any evidence on record to establish that the appellant has passed on the incidence of duty to someone else. Therefore, the ground of appeal of Revenue that the Adjudicating Authority did not examine the principle of unjust enrichment is not acceptable. Further, he observed It is not enough to simply say that the Adjudicating Authority did not examine the principle of unjust enrichment; that the department should have given proof that the assessee has passed on the incidence of duty to someone else. Further observed there are several rulings, which clearly state that the doctrine of unjust enrichment does not apply to deposits made during investigation. 9. Being aggrieved, both the assessee and Revenue are in cross appeals as aforementioned. 10. We find that the issue in this appeal is squarely covered by the precedent order of this Tribunal (Allahabad Bench) in the case of Parle Agro Ltd [Final Order No. 70180-70181/2021 dt.25.05.2021], wherein also, the amount paid during investigation, subsequently found to be refundable pursuant to adjudication/ appellate order, was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Maithan Ceramics Ltd (supra) is misplaced as in the said ruling, although the Hon ble High Court had considered the ruling of Apex Court in Sandvik Asia Ltd, it did not follow the same, observing that Maithan Ceramics had deposited duty and penalty after the adjudication as Pre-deposit for Appeal during 2005-06 and at that material point of time, there was no statutory provision in the Customs Act, with regard to interest on refund of such deposit. It was only by Act 18 of 2008, Sec 129EE providing for refund of pre-deposit with interest was introduced into the Customs Act. Thus, as the facts in the matter of Maithan Ceramics Ltd have been found different, which was considered by Hon ble Andhra Pradesh High Court, the said ruling is not applicable in the facts of the instant case, particularly, as the deposit was made during the investigation stage in the year 2009 (after introduction of Sec 129EE by Act 18 of 2008). Moreover, the ruling of Hon ble Supreme Court prevails over the ruling of Hon ble High Courts. Further, the amounts paid during investigation are to be treated as deposits as held by the Hon ble Delhi High Court in Team HR Services Pvt Ltd vs UOI [2020 (38) GSTL 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contested the SCN issued by the Revenue and was finally successful before this Tribunal, vide Final Order No. A/30083-30084/2022 dt.06.09.2022. We also find that Coordinate Bench of this Tribunal at Delhi, in Parle Agro Ltd (supra), under similar facts and circumstances, have granted interest @12% per annum from the date of deposit (1993) till the date of refund, following the ruling of the Apex Court in Sandvik Asia Ltd (supra). 18. We further find that the Hon ble Madras High Court in the case of CCE, Coimbatore vs Pricol Ltd [2015 (320) ELT 703 (Mad)], wherein, under similar circumstances, amount was deposited under protest at the time of investigation, it was held that any amount that is deposited during pendency of adjudication proceedings or investigation is in the nature of deposit under protest and therefore, the principle of unjust enrichment does not apply. In the present case also, there is absence of fact on record that the appellant/assessee has received any amount from the foreign buyer, in addition to the amount of final invoice, pursuant to export of iron ore. Further, admittedly, the final invoice for export is dated 25.08.2008 and remittance was received before 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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