TMI Blog2022 (2) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has dealt with the need of amendment in Section 128 A(3) of Customs Act. While adjudicating the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [ 2007 (3) TMI 8 - SUPREME COURT] , it has been held by Hon ble Supreme Court that Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35B indicates that the decision of order passed by the Commissioner (A) shall be treated as an order of an adjudicating authority. In the circumstances the High Court had erred in holding that the assessee was not entitled to agitate the question of dutiability in appeal before the Tribunal - The said decision was immediately taken into consideration by Hon ble Punjab and Haryana in the case of COMMISSIONER OF CUS., AMRITSAR VERSUS ENKAY (INDIA) RUBBER CO. PVT. LTD. [ 2007 (3) TMI 276 - HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH] wherein after applying the MIL decision the matter was sent back to the Commissioner (Appeals) for decision in accordance with the law. The question of adjudication is thus decided holding that the Commissioner (Appeals) was not at all entitled to, any more be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Anubhav Goel, Advocate for the Appellant Shri Mahesh Bhardwaj, Authorised Representative for the Department ORDER The present appeal has been filed to assail the Order-in- Original bearing number 797/2021-22 dated 01.09.2021. the facts in brief are as follows: The appellants were availing the Zero Duty EPCG Scheme under Bill of entry 8298520 dated 23.10.2012. However, the Department opined the appellant to not to be eligible for the same and required the appellant to deposit an amount of ₹ 10,88,180/- which was deposited by the appellant vide challan dated 23.10.2018, 30.04.2014 and 23.05.2014. However vide Show Cause Notice No. 1430 dated 30.03.2016, alleging that the appellant had not followed the condition of Zero Duty EPCG authorisation, that the refund was proposed to be rejected. The amount of ₹ 10,88,180/- was proposed to be recovered and the said demand was confirmed against the appellant vide Order in Original No. 70/2017 dated 31.03.2017. The appeal against the said order was allowed by Commissioner (Appeals) vide Order No. 107/2019-20 dated 20.01.2020. The appellant thereafter filed the refund claim of the aforesaid amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er decision of this Tribunal in the case of M/s. Fujikawa Power and others vs. CC Chandigarh and Final Order No. 61041-61042/2019 dated 26.11.2019 was considered. With these submissions, learned council has prayed that order under challenge to be set aside and the appeal in hand to be allowed. 6. While rebutting these submissions learned departmental representative has mentioned that the application for seeking refund of the amount of ₹ 10,88,180/- was filled by the appellant on 23.01.2020. the Original Adjudicating Authority has sanctioned the said refund vide order dated 29.07.2020. Apparently, the sanctioned was beyond the period of three months and hence it can be acknowledged that the appellant is entitled for the interest after three months from the date of order. However, it is vehemently objected that the interest be granted from the date of deposit of the said amount. Learned Departmental Representative has mentioned that the appellant is entitled for the interest from the date of his application i.e. with effect from 23.01.2020. No objection is endorsed for modifying the impugned order, however to the said extent only. 7. After hearing both the parties and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35B indicates that the decision of order passed by the Commissioner (A) shall be treated as an order of an adjudicating authority. In the circumstances the High Court had erred in holding that the assessee was not entitled to agitate the question of dutiability in appeal before the Tribunal. The said decision was immediately taken into consideration by Hon ble Punjab and Haryana in the case of Enkay (India) Rubber Co. P Ltd. (supra) case wherein after applying the MIL decision the matter was sent back to the Commissioner (Appeals) for decision in accordance with the law. 9. In view of the entire above discussion, I decide the first question of adjudication holding that the Commissioner (Appeals) was not at all entitled to, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Commissioner (Appeals) is dismissed. 13. I further observe that the amount in question was deposited by the appellant in the year 2014 i.e. even prior to issue of Show Cause Notice dated 30.3.2016. The relevant provision in the given circumstances is section 35FF of Central Excise act, 1944. It reads as follows: Section 35FF. Interest on delayed refund of amount deposited under the proviso to Section 35F - Where an amount deposited by the appellant in pursuance of an order passed by the Commissioner (Appeals) or the Appellate Tribunal (hereinafter referred to as the appellate authority) under the first proviso to section 35F, is required to be refunded consequent upon the order of the appellate authority and such amount is not refunded within three months from the date of communication of such order to the adjudicating authority, unless the operation of the order of the appellate authority is stayed by a superior court or tribunal, there shall be paid to the appellant interest at the rate specified in section 11BB after the expiry of three months from the date of communication of the order of the appellate authority, till the date of refund of such amount. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as has happened in the instant case. It is a case of the appellant as set out above in the instant case for the assessment year 1978-79, it has been deprived of an amount of ₹ 40 lakhs for no fault of its own and exclusively because of the admittedly unlawful actions of the Income Tax Department for periods ranging up to 17 years without any compensation whatsoever from the Department. Such actions and consequences, in our opinion, seriously affected the administration of justice and the rule of law. 15. As the Hon ble Apex Court has answered the issue holding that the assessee is entitled to claim interest from the date of payment of initial amount till the date its refund. Therefore, I hold that the appellants are entitled to claim the interest on delayed refund from the date of deposit till its realization. 16. Further, the interest on the refund shall be payable @ 12% per annum as held by Hon ble Kerala High Court in the case of Sony Pictures Networks India Pvt.Ltd.[2017 (353) ELT 179 (Ker.) ] wherein it has held as under:- 14. Now, the sole question remains to be considered is what is the nature of interest that the petitioner is entitled to get. As dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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