Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Bata India Ltd. Versus CCE, Delhi

2017 (8) TMI 161 - CESTAT CHANDIGARH

Refund of pre-deposits made by appellant - time limitation - Section 11B of the Central Excise Act - Held that: - the issue of applicability of Section 11B on deposits made under Section 35F is no longer res integra and has been decided by Hon'ble Bombay High Court in the case of SUVIDHE Ltd. Vs. UOI [1996 (8) TMI 521 - SUPREME COURT], where it was held that the provisions of Section 11B of the Act are not applicable to refund of pre-deposits made by the assessee - refund allowed. - Interest .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

spondent ORDER Per : Devender Singh The appellants are in appeal against the impugned order. 2. The brief facts of the case are that the appellants had filed a refund claim amounting to ₹ 20,00,000/- of pre-deposit of Central Excise duty made as a condition precedent to the hearing of their Appeal No. ER No. 52/98 in terms of Order No. S-228/CAL/98 dt. 22.05.1998 passed by the Hon ble Customs, Excise & Service Tax Appellate Tribunal, Kolkata. The Hon ble CESTAT had allowed the appeal v .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mits that the limitation prescribed Under Section 11B of the Central Excise Act (the Act) is not applicable to the pre-deposit made under Section 35 of the Act since the pre-deposit is not in the nature of duty and is in the nature of pre-deposit. She submits that it is settled legal position that the provisions of Section 11B of the Act are not applicable to refund of pre-deposits made by the assessee. In this regard she relied upon the following case laws:- 1. Suvidhe ltd. Vs. UOI, 1996 (82) E .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed Vs. UOI 2002 (144) ELT 56 (Bom.). 8. CCE, Chennai-III Vs. Consul Consolidated Pvt. Ltd. 2002 (141) ELT 792 (Tri. Chennai). 9. Kunj Behari Dye Chem Pvt. Ltd. Vs. CCE 2009 (241) ELT 84 (Tri.-Bang.). 10. Nestle India Ltd. Vs. CCE 2003 (154) ELT 567 (Kar.). 11. Konark Cement & Asbestos Ltd. Vs. CCE 2000 (120) ELT 634 (Tri.) 12. CCE Vs. Pepsi Foods Ltd. 2000 (118) ELT 536 (Tri.) 13. Parle International Ltd. Vs. UOI 2003 TIOL 23-HC-AHM-CX. She further submitted that Section 35 of the Act distin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re-deposit under Section 11BB of the Act as per the provisions contained in Section 35FF of the Act. It was also argued by the Ld. advocate that if the pre-deposit was duty, Section 35FF was not needed as Section 11BB would have taken care of the same. 4. Ld. AR reiterated the findings in the order of the Ld. Commissioner (Appeals) and relied upon the following case laws:- 1. Harinagar Sugar Mills Ltd. Vs. State of Bihar 2004 (176) ELT 48(SC). 2. CCE, Mumbai Vs Reliance Industries Ltd. 2003 (152 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

5. Heard the parties and perused the records. 6. I find that the issue of applicability of Section 11B on deposits made under Section 35F is no longer res integra and has been decided by Hon'ble Bombay High Court in the case of SUVIDHE Ltd. Vs. UOI (supra) wherein Hon ble High Court held as below:- 2.Show cause notice issued by the Superintendent (Tech.) Central Excise to the petitioner to show cause why the refund claim for Excise Duty and Redemption fine paid in a sum of ₹ 14,07,410/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

35F has not received a favourable response. On the contrary the impugned show cause notice is issued why the amount deposited should not be forfeited. In our judgment, the claim raised by the Department in the show cause notice is thoroughly dishonest and baseless. In respect of a deposit made under Section 35F, provisions of Section 11B can never be applicable. A deposit under Section 35F is not a payment of Duty but only a pre-deposit for availing the right of appeal. Such amount is bound to b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

isions on this issue, they would prevail over the decision of the Tribunal in the case of CCE, Mumbai Vs. Reliance Industries (supra). Besides, CBEC itself has taken the view that pre-deposit is not in the nature of duty, the limitation under Section 11B cannot apply in the present case. 9. The judgment cited by Ld. AR in respect of refund of pre-deposit are not applicable for the following reasons. 1. The case of Harinagar Sugar Mills Ltd. Vs. State of Bihar (supra) is not in relation to Centra .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the nature of other than duty. 3. The judgment of Mahavir Aluminium Ltd. Vs. Collector of Central Excise, Jaipur (supra) was in the context of bar of unjust enrichment. 4. The judgment of Miles India Ltd. Vs. Assistant Collector of Customs (supra) relate to the payment of duty under mistake of law which is not the case here. Similarly, the judgment of Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills (supra) is not in relation to refund of pre-deposit and hence is inapplicable. 5. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

-deposit was examined in detail by this Tribunal in the case of AFCONS Infrastructure Ltd. CCE, Visakhapatnam 2006 (204) ELT 333 (Tri. Del.) wherein this Tribunal took the following view:- 8.4 Section 11BB, referring to the provisions of Section 11B (2) under which refund is ordered, lays down that if the duty ordered to be refunded is not refunded within three months from the date of the receipt of the application under sub-section (1) of Section 11B, the applicant will be paid interest, as ind .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or Deputy Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. This explanation appears to have been incorporated because Section 11B(2) refers to order of refund made by the Assistant Commissioner or Deputy Commissioner of Central Excise. In view of this explanation even wh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ially rejecting the claim of refund with interest, the order of the Appellate Tribunal shall be deemed to be an order passed under sub-section 11B(2) for the purposes of award of interest on delayed refunds under Section 11BB. In other words, even in an appeal which arises before the Tribunal from any order partially denying the claim of refund with interest, when the interest is to be awarded it will have to be in consonance with the provisions of Section 11BB and the interest shall be paid to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he appellant would, therefore, not be entitled to interest on the refund claim from 15-10-1994, being the date on which the deposit of partial amount of duty demanded was made by the appellant under Section 35F of the Act for the hearing of the appeal. 8.6 Admittedly, the refund claim was sanctioned within three months from the date of the application for refund. Obviously, therefore, the appellant was not entitled to claim interest on the refund of ₹ 4,30,000/- being the pre-deposit of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ary to the provisions of Section 11BB of the Act since the award of interest under that decision is obviously relatable to the plenary powers of the Supreme Court. Even the award of interest by the High Courts in exercise of their writ jurisdiction will not constitute a ratio creating power of the Tribunal or revenue authorities to award interest contrary to the provisions of Section 111BB on the delayed refunds. As held by the Hon ble the Gujarat High Court Padmanabh Silk Mills v. Union of Indi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version