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2022 (12) TMI 719 - AT - Central ExciseInterest on the delayed refund of deposit - whether the appellant had deposited Rs.3,23,09,687/- under section 35F of the Excise Act because if it was such a deposit then the appellant would be entitled to interest under the provisions of section 35 FF of the Excise Act? - HELD THAT:- Section 11B of the Excise Act deals with claim for refund of duty and interest, if any, paid on such duty. Sub-section (1) of section 11B of the Excise Act provides that any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest to the Assistant Commissioner of Central Excise before the expiry of one year from the relevant date. It is, therefore, clear that section 11B of the Excise Act would only apply for claim of refund of duty and interest, if any. It would have no application in a case where the applicant seeks refund of the pre-deposit amount. The Commissioner (Appeals) rejected the claim by treating the refund to have been claimed by the appellant under section 11B of the Excise Act and consequently making applicable the provisions of section 11BB of the Excise Act that deals with interest on delayed refunds. The claim of the appellant was under section 35F of the Excise Act and not under section 11B of the Excise Act. Mere mention of a wrong provision in the letter submitted by the appellant will not work to the prejudice of the appellant if in law the refund claimed by the appellant can be traced to section 35F of the Excise Act. Interest was, therefore, required to be paid to the appellant under the provisions of section 35FF of the Excise Act and not under section 11BB of the Excise Act. The Supreme Court in UNION OF INDIA VERSUS TATA SSL LTD. [2007 (10) TMI 16 - SC ORDER] also relied upon its earlier judgment in COMMISSIONER OF CENTRAL EXCISE, HYDERABAD VERSUS ITC. LTD. [2004 (12) TMI 90 - SUPREME COURT] and the Circular dated 08 December, 2004 to hold that pre-deposit made as a condition for hearing the Appeal has to be refunded to the assessee with interest when the assessee becomes successful. In view of the provisions of section 35FF of the Excise Act it has to be held that since the amount deposited by the appellant under section 35F of the Excise Act was not refunded to the appellant within three months from the date of communication of the order of the Tribunal, the appellant would be entitled to interest after the expiry of three months from the date of the order of the Tribunal till the date of refund of such amount at the rate of six percent per annum - Appeal allowed in part.
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