TMI Blog2017 (5) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... the application was submitted at a later point of time, especially due to the fact that the notifications are not restricting the payment of interest from the date of submission of application. What will be the rate of interest that the petitioner is entitled to get? - Held that: - in the case of Kuil Fire Works Industries v. Collector of Central of Excise [1997 (9) TMI 105 - SUPREME COURT OF INDIA], it was held that, the pre-deposit made by the assessee was directed to be returned to him with 12% interest - the interest that is liable to be paid by the respondents is fixed at 12% per annum. Petition allowed - decided in favor of petitioner. - WP(C).No. 39089 of 2016 (I) - - - Dated:- 4-4-2017 - MR. SHAJI P.CHALY For The Petitioner : Shaji Thomas, H. Kiran and Prasad Paranjape For The Respondent : Sreelal N. Warrier, SC JUDGMENT The short question raised by the petitioner in this writ petition is whether the petitioner is entitled to get interest at the rate of 12% per annum on refund of pre-deposit of ₹ 1,15,15,214/- granted to the petitioner after the expiry of three months from the date of the order passed by the appellate Tribunal that is 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner alleging unjust enrichment stating that the requisite documents were not submitted, evident from Ext.P10. A reply was submitted through advocate dated 24.02.2016 evident from Ext.P11. Ext.P13 interest calculation statement was also provided by the petitioner. 5. Against the said notice petitioner filed W.P.(C) No.10019/2016 and secured Ext.P12 judgment, whereby this Court directed the 3rd respondent to grant the refund along with applicable interest to the petitioner within one month from the date of the order. Accordingly petitioner received the refund cheque for ₹ 1,15,15,214, along with a cheque towards interest for an amount of ₹ 5,69,766/- and a letter stating that, as per para 4 of CBEC circular No.802/35/2004-CX dated 08.12.2004, pre-deposit has to be returned within 3 months from the date of receipt of the final order of the court, and the order of the Supreme Court in the present case, which was received at the office of CBEC on 4.08.2016. And therefore petitioner shall be eligible for interest from 04.11.2016 alone at 6% per annum, to which petitioner has submitted Ext.P18 reply claiming interest at 12% on expiry of three months from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court settling the classification dispute in the instant case was received at the office of the Central Board of Excise and customs on 04.08.2015. Hence the petitioner become eligible for interest from 04.11.2015 and accordingly applicable interest was paid to the petitioner as per the notification dated 12.09.2003. It is further contented that the Supreme Court by its judgment dated 28.07.2015 classified the satellite receiver under CTH 8525.20 and ordered that the excess duty paid by the petitioner shall be refunded in accordance with law and thus the issue of classification is conclusively settled by the Supreme Court and directed to refund excess duty paid by the petitioner in accordance with law. Petitioner has filed refund application on 01.10.2015 which was received at the office of the respondents on 16.10.2015 for refund of the customs duty paid under protest. It is also stated that petitioner submitted a letter asking for the refund of differential duty paid for the first time only as per the letter referred to above. No such course of action was adopted by the petitioner after the order passed by the cegat dated 18.11.2002. The circular dated 02.01.2002 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenting that, the interest rate in the said cases have been ordered by different appellate authority, according to the nature of the said cases and cannot be considered paramateria with the instant case. That apart it is also stated that the Supreme Court judgment dated 21.09.2004 referred to in the circular where the rate of interest quantified as 12% per annum is to be applied in the instant case cannot be accepted as the facts of the said case are entirely different from this case. As per notification No.75/2003/ Customs/NT dated 12.09.2003 the Central Government has fixed the rate of interest at 6% per annum for the purpose of the said section. Therefore, according to the respondents, petitioner is not entitled to get any relief as sought for in the writ petition. 9. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition. That apart it is contented that in the case of Commissioner of Central Excise v. ITC Limited [2005 (179) E.L.T. 15 (S.C.)] the Supreme Court directed payment of interest at 12% per annum on delayed payment of pre-deposit after the expiry of three months from the date of the favourable order. Thus the third respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of appeal was discussed in the Board meeting. It was decided that since the practice in the Department had all along been to consider such deposits as other than duty, such deposits should be returned in the event the appellant succeeds in appeal or the matter is remanded for fresh adjudication. 2. It would be pertinent to mention that the Revenue had recently filed a Special Leave Petition against Mumbai High Court's order in the matter of NELCO LTD, challenging the grant of interest on delayed refund of pre-deposit as to whether: (i) the High Court is right in granting interest to the depositor since the law contained in Section 35F of the Act does in no way provide for any type of compensation in the event of an appellant finally succeeding in the appeal, and, (ii) the refunds so claimed are covered under the provisions of Section 11B of the Act and are governed by the parameters applicable to the claim of refund of duty as the amount is deposited under Section 35F of the Central Excise Act, 944. The Hon'ble Supreme Court vide its order dated 26.11.2001 dismissed the appeal. Even though the Apex Court did not spell out the reasons for dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's favour. 4. According, the contents of the Circular No.275/37/2000-CX 8A dated 02.01.2002 [2002 (139) E.L.T T138], as to the modalities for return of the pre-deposits are reiterated. It is again reiterated that in terms of Hon'ble Supreme Court's order such pre-deposit must be returned within 3 months from the date of the order passed by the Appellate Tribunal/Court or other Final Authority unless there is a stay on the order of the Final Authority/CESTAT/Court, by a superior Court. 5. Delay beyond this period of three months in such cases will be viewed adversely and appropriate disciplinary action will be initiated against the concerned defaulting officers. All concerned are requested to note that default will entail an interest liability, if such liability accrues by reason of any orders of the CESTAT/Court, such orders will have to be complied with and it may be recoverable form the concerned officers. 6. All Commissioners may advise implementation of these instructions and ensure their implementation through a suitable monitoring mechanism. Field formation may be suitable informed. Copies of the instruction issued may be endorsed to this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
