TMI Blog2021 (5) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the stay application - the rate of interest varies from 6% to 18% in the aforesaid Notifications issued under sections 11AA, 11BB, 11DD and 11AB of the Excise Act, the grant of interest @12% per annum seems to be appropriate. Appeal allowed - decided in favor of appellant. - EXCISE APPEAL NO. 70628 OF 2019, 70674 OF 2019 with CROSS APPLICATION NO.70411 OF 2019 - FINAL ORDER NO. 70180-70181/2021 - Dated:- 25-5-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P V SUBBA RAO, MEMBER (TECHNICAL) Mr. Anupam Tiwari, Authorised Representative for the Appellant Mr. Mr. Bharat Rai Chandan, Advocate for the Respondent ORDER Excise Appeal 70628 of 2019 has been filed by M/s. Parle Agro Pvt Ltd [the Appellant] to modify the order dated 28.05.2019 passed by the Commissioner, CGST(Appeals), Noida [ the Commissioner (Appeals) ], to the extent that interest should be granted @12% instead of @6%, as ordered by the Commissioner (Appeals). This order modifies the order dated 01.11.2018 passed by the Assistant Commissioner to the extent that interest on the refund amount has been allowed from the date of deposit till the date of payment. It needs to be noted that the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 lacs towards duty and furnish a bank guarantee of ₹ 50 lacs towards fine. The appellant complied with the terms of the aforesaid interim order passed by the Tribunal. 9. The Tribunal, ultimately by order dated 02.08.2005, partly allowed the appeal. The duty demanded for the cost of advertisement charges was set aside and the appeals filed by the officers of the company, on whom penalty was imposed, were allowed and the imposition penalties were set aside. However, the penalty imposed on the manufacturer was reduced to ₹ 10 lacs and the demand on short levy on account of non-passing of the sales tax collected from the bottlers was upheld. The order passed by the Tribunal is reproduced below: 4. The Appellants Pepsi Agro is a manufacturer of beverages concentrates Non-Alcoholic Beverage Base (NABB). Dispute in this Appeal is about the valuation of NABB. The impugned order has held that some recoveries were being made towards advertisements of soft drinks produced out of NABB and that these recoveries should form part of the assessable value of NABB. While receipt of this main part of the demand, there is also demand of about 28 lakhs on the ground that the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants. (emphasis supplied) 10. Pursuant to the aforesaid order passed by the Tribunal, the appellant filed an application dated 02.09.2005 for refund of the excess amount of ₹ 1,48,36,185/- deposited during investigation and that deposited for compliance of the interim order passed by the Tribunal. 11. The refund application filed by the appellant was rejected on the ground of limitation by order dated 31.01.2006. The appeal filed before the Commissioner (Appeals) was also dismissed on 17.7.2006. 12. An appeal was, thereafter, filed by the appellant before the Tribunal. This appeal was allowed by order dated 31.01.2017. The operative part of the order is reproduced below: 6. Having considered the rival contentions, we find that as held by Hon'ble of Punjab and Haryana High Court and as earlier held by this Tribunal the amounts, which are deposited during the pendency of investigation and proceedings, if the same are not adjudged as duty fine or penalty then the amount that is not adjudged as duty, fine and penalty is to be treated as Revenue deposit and the provisions of refund of duty shall not be applicable to the same. The amount which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant is that a specific finding was recorded by the Tribunal in the order dated 31.01.2017 that it was a revenue deposit of amount and not central excise duty and as the Department had not filed any appeal to assail the finding recorded in order of the Tribunal, this finding attained finality and, therefore, cannot be assailed in this appeal filed by the Department. Learned counsel further submitted that the Commissioner, pursuant to the order passed by the Tribunal, had also sanctioned the refund. 20. This submission of learned counsel for the appellant deserves to be accepted. Once a finding was recorded by the Tribunal in the order dated 31.01.2017 that the amount which had been deposited by the appellant during investigation and that deposited pursuant to the interim order passed by the Tribunal was a revenue deposit and not an excise duty deposit and there was no challenge to this finding of the Tribunal, the appellant cannot now, after the Commissioner (Appeals) has allowed the appeal by order dated 28.05.2019, raise this issue by filling the present appeal to assail the order dated 28.05.2019. 21. It also needs to be noted that the revenue had accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the rate specified in sub-section (2). The interest rate that has been specified in sub-section (2) is not below 10% and not exceeding 36% per annum as the Central Government, by notification in the Official Gazette fix. 28. Section 11B of the Excise Act deals with claim for refund of duty and interest, if any, paid on such duty. It provides that any person claiming refund of any duty of excise and interest may make an application for such refund of duty and interest. 29. Section 11BB provides for interest on delayed refund. It states that if any duty ordered to be refunded under sub-section (2) of section 11B is not refunded within three months from the date of receipt of the application, than the applicant shall be entitled to interest after the expiry of three months from the date of receipt of the application at such rate not below 5% and not exceeding 30% as may be notified by the Central Government in the Official Gazette. 30. In the present case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or omitted to be done before such supersession, the Central Government hereby fixes the rate of interest at fifteen per cent per annum for the purpose of the said section. 2. This notification shall come into force from the 1st day of April, 2016. 36. The Notification issued under section 11BB provides interest at the rate of six per cent per annum. It is reproduced below: Notification No. 67/2003-C.E. (N.T.), dated 12-9-2003 Notification Under Section 11BB Interest @ 6% per annum on delayed refunds. In exercise of the powers conferred by section 11BB of the Central Excise Act, 1944 (1 of 1944) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 17/2002-Central Excise (N.T.), dated the 13th May, 2002 [GSR 353(E), dated the 13th May, 2002], except as respect things done or omitted to be done before such supersession, the Central Government hereby fixes the rate of interest at six per cent per annum for the purpose of the said section. 37. The Notification issued under section 11DD provides interest @ of 15% per annum on the amount collected in excess of duty. It is reproduced below: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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