TMI Blog2022 (5) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 and that the amount was sanctioned within three months from the date of communication of the order of the Tribunal to the adjudicating authority. The appellant would, therefore, not be entitled to claim interest. This is what was observed by the Deputy Commissioner as also the Commissioner (Appeals) while rejecting the claim of the appellant for payment of interest. In the present case, section 35F of the Excised Act, as it stood prior to 06.08.2014, provides for payment of interest only if the pre-deposit amount is not refunded within a period three months from the date of communication of the order to adjudicating authority. This is what has been observed by the Commissioner (Appeals). Appeal dismissed. - EXCISE APPEAL NO. 30543-30544 OF 2019 - FINAL ORDER NO. 30061-30062/2022 - Dated:- 20-5-2022 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri PVB Chary, Advocate for the Appellant Shri AVLN Chary, Special Counsel for the Department ORDER These two appeals have been filed by Cubex Tubings Limited [ the appellant ] seeking quashing of the order dated 16.08.2019 passed by the Commissioner (Appeals)-II, Hyderabad [ the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in section 11BB after the expiry of three months from the date of the order of the appellate authority, till the date of refund of such amount. Post 6.8.2014 35 FF : Where an amount deposited by the appellant under section 35F is required to be refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, not below five percent and not exceeding thirty-six percent per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such amount from the date of payment of the amount till the date of refund of such amount. Provided that the amount deposited under section 35F, prior to the commencement of the Finance (No.2) Act, 2014 shall continue to be governed by the provisions of Section 35 FF as it stood before the commencement of the said Act. 5. Learned counsel for the appellant submitted that since the Tribunal allowed the two appeals filed by the appellant on 28.02.2019 much after 06.08.2014, on which date section 35FF was amended, the appellant would be entitled to interest in terms of the amended provisions of section 35FF of the Excise Act. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by the provisions of section 35FF of the Excise Act as it stood before 06.08.2014. Thus, the appellant would not be entitled to claim interest on the pre-deposit amount as the provisions of section 35FF of the Excise Act, as it stood prior to its amendment on 06.08.2014, would be applicable. This is for the reason that section 35FF of the Excise Act, as it existed prior to 06.08.2014, provided that where the amount deposited towards pre-deposit under section 35F of the Excise Act 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, 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 the order of the appellate authority, till the of refund of such amount. In other words, if the amount is refunded within three months from the date of communication of the order, interest would not be paid. 9. In the present case, it is not in dispute that the amount towards pre-deposit was deposited on 30.08.2012 and that the amount was sanctioned within three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequent upon the order of the Appellate Authority, it will carry an interest at the specified rate till the date of refund. It permits payment of interest at the specified rate for the entire period, the amount remains deposited with the authority. However, the aforesaid provision has been subjected to a proviso, which lays down that if any amount has been deposited prior to the enforcement of the Finance Act No. 25 of 2014 i.e. before 06.08.2014, it shall continue to be governed by the unamended provision of Section 35FF of the Act, which means that in cases of deposit made prior to 06.08.2014, interest would be payable only if the amount is not refunded within a period of three months from the date of communication of the appellate order. Apart from the above provision, there is no other provision, which permits payment of interest on the amount of excise duty deposited in pursuance to the order of the Commissioner (Appeals) or the Tribunal by any party. A composite reading of unamended Section 35FF and amended Section 35FF of the Act reveals that in respect of an amount deposited prior to the commencement of the Finance Act No. 25 of 2014, interest on the refunded amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed payment of interest, even though the amount was refunded within three months from the date of communication of the order following the decision of the Supreme Court in Sandvik Asia Ltd. This judgment of the Supreme Court does not deal with the issue in hand. The main issue that arose before the Supreme Court was whether an assessee is entitled to be compensated by the Income Tax department for the delay in paying to the assessee the amount admittedly due. The delay in the matters before the Supreme Court were for various periods ranging from 12 to 17 years and the Supreme Court noticed that there was no justifiable reason for withholding the amount for such long period time. Interest on the amount refunded was granted to the appellant but the appellant also claimed interest on the Advance Tax that was paid. It is in this context that the Supreme Court held that interest was also required to be paid on the Advance Tax since Advance Tax has also to be treated as paid pursuant to an order for assessment. The decision the learned Member of the Tribunal in J.K. Cement Works, therefore, does not lay down the correct position of law and would not come to the aid of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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