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Commissioner of Central Excise, Kanpur Versus M/s K.P. Enterprises

2017 (12) TMI 317 - CESTAT ALLAHABAD

Demand on interest - whether the ld. Commissioner (Appeals) have rightly directed payment of interest on the amount deposited during investigation, which was lying with the Department and thereafter no SCN was issued? - Held that: - the issue is squarely covered by the ruling of this Tribunal in the case of Toyoto Kirloskar Auto Parts Pvt. Ltd. [2008 (9) TMI 345 - CESTAT, Bangalore], where it was held that the appellant is entitled for interest on the amount, which has been withheld by the Depar .....

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hary The issue in this appeal by Revenue is, whether the ld. Commissioner (Appeals) have rightly directed payment of interest on the amount deposited during investigation, which was lying with the Department and thereafter no Show Cause Notice was issued. Subsequently, the respondent-assessee claimed refund, the said amount being in the nature of deposit and not duty, either on self-determination or determined by the Department. 2. The brief facts of the case are that the respondent-assessee eng .....

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pondent-assessee did not follow proper procedure as laid down under Section 11B of Central Excise Act, 1944 for refund of duty deposited under protest as the said duty was deposited after quantification of duty by the Department, as communicated by the Superintendent (CP), Central Excise, Kanpur. Being aggrieved the appellant had filed appeal before ld. Commissioner (Appeals) who vide OIA No.01-CE/APPL/KNP/2009 dated 13/01/2009 ordered for refund of the said amount with interest. The Jurisdictio .....

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three months from the date of order passed by Commissioner (Appeals), therefore, the interest was not payable to them (respondent-assessee). Being aggrieved, the respondent-assessee filed another appeal before Commissioner (Appeals), Central Excise, Kanpur, who vide the impugned OIA No.194-CE/APPL/KNP/2009 dated 27/07/2009 ordered for refund of interest as decided by his earlier Order-in-Appeal dated 13/01/2009. The ld. Commissioner (Appeals) also distinguished the CBEC Circular dated 08/12/200 .....

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ate the case. The amount was held by the Department for more than 4 years without assigning any reason and due to this reason the respondent-assessees request for compensation in the shape of interest which was granted earlier by Commissioner (Appeals). Hence, the facts of this case are different from the case of pre-deposit under Section 35F of the Central Excise Act, 1944, which have been dealt with by the aforementioned CBEC, Board Circulars. Therefore, the directions contained in the said ci .....

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eld that interest, if any, on refund of the amount deposited during investigation is to be given after expiry of three months from the date of receipt of Refund Application under Section 11BB of the Central Excise Act, 1944. Further, referring to the ruling of Hon ble Punjab & Haryana High Court in the case of Geekay International Versus Union of India, 2008 (230) E.L.T. 590. It is urged that the Hon ble Punjab & Haryana High Court, while ordering the return of the deposits have not awar .....

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ision Bench of this Tribunal in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Versus Commissioner of Customs, Bangalore reported at 2009 (240) E.L.T. 124 (Tri. - Bangalore) wherein under similar facts where the amount was deposited during investigation on the directions of the Department and consequent to final order, the respondent-assessee claimed refund of the entire amount paid by them with interest. But the Assistant Commissioner ordered refund of only the principal amount paid by the r .....

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s seen from the Tabular column given and it is seen that the Order-in-Original was passed on 30-8-2005 and it has been mentioned that it has been also served after a delay of 244 days. It is very clear that at least a major portion of the amount was with the Department right from the year 2004. When it is held that the amount is not due and it had also been collected much before the adjudication order, the amount can only be treated as deposit. This amount has been withheld by the department on .....

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authority should adopt the rates notified by the Government of India for delayed refunds. Thus, we allow the Misc. Application in the above manner. 5. Being aggrieved the Revenue unsuccessfully preferred appeal before the Hon ble Karnataka High Court and thereafter the SLP was also dismissed as reported in 2013 (297) E.L.T. A-149 (SC). The ld. counsel also relied on the ruling of Hon ble Madras High Court in the case of Commissioner of Central Excise, Chennai-II Versus Ucal Fuel Systems Ltd. re .....

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