TMI Blog2022 (5) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... erest gets triggered under Section 11BB of the 1944 Act, once the stipulated period for refund of the amount gets over (in this case, the stipulated period is three months commencing from the date of receipt of application under sub-section (1) of Section 11BB of the 1944 Act) - there cannot be any estoppel against a statute. Once the statute provides for payment of interest and the stipulated conditions are fulfilled, the respondent/revenue would be obliged, in law, to pay the interest. The respondent/revenue will pay interest on Rs.2,32,09,285/- at the rate of 6% p.a. (simple), commencing from 02.02.2018 till the date of payment i.e., 03.01.2019 - The respondent/revenue will remit to the petitioner the excess amount paid towards tax and cess i.e., Rs.36,27,615/- (Rs.36,94,642 less Rs.67,027/, which, according to the petitioner was a calculation error. Petition allowed. - W.P.(C) 9628/2021 - - - Dated:- 23-5-2022 - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MS. JUSTICE TARA VITASTA GANJU Petitioner Through: Mr Puneet Agarwal, Mr Prem Kundpal, Ms Hemlata Rawat, Mr Chetan Kumar Shukla and Mr Ayushman Vatsyayana, Advs. Respondent Through: Mr Akshay Amr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urate facts. For this purpose, our attention has been drawn to paragraph 8 at page 75 of the case file, wherein it is stated that, on account of Business Auxiliary Services , the petitioner had failed to pay service tax amounting to Rs.2,40,03,002/-. Mr. Aggarwal has pointed out that this amount has been paid. In this behalf, our attention has been drawn to page 178 and 232 of the case file. 4. We may note that, the record, at present, shows that the case set up by the petitioner was that, it had deposited excess amount towards service tax and cess, and since certain amounts remained unutilized, it wanted refund of the excess amount. 4.1. In the first round, the Order-in-Original dated 03.01.2019 had pegged the refund amount, at Rs.2,32,09,285/-. In doing so, it denied refund attributable to cess amounting to Rs.36,94,642/-. 4.2. It is because of this grievance that the petitioner had carried the matter in appeal to the Commissioner (Appeals-I), who, via order dated 30.05.2019, had remanded the matter to the adjudicating authority. 4.3. The grievance of the petitioner is that, the adjudicating authority, instead of confining itself to this aspect of the matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l (A) 6,16,98,641/- Total liability October 2016 to March 2017 2,45,56,461/- April 2017 to June 2017 1,03,05,282/- Total (B) 3,48,61,743/- (A) -(B) (Excess paid) 2,68,36,898/- Less (Refund already granted) 2,32,09,285/- Tax Excess paid (Refundable) 36,27,613/- 2.3. The matter was, thereafter, posted on 02.05.2022, on which date, at the request of the learned counsel for the respondent, the matter was adjourned for today i.e., 23.05.2022. 3. A perusal of the record and orders culled out above would show that, in the first instance, the Order-in-Original was passed on 03.01.2019, which was carried in appeal by the petitioner. In appeal, the Commissioner (Appeals-I) via order dated 30.05.2019, inter alia, made the following observations: DISCUSSION FINDINGS: 6. 1 have carefully gone through the facts of the case and the submissions made by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively. 9. On perusal of para 8 (2) of the impugned O-I-O it is seen that, the AA has rejected the cess amount of Rs.36,94,642/- stating I find that, the admissible refund claim comes to Rs. 2,32,09,285/- out of Rs.2,69,03,927/- after deduction of cess amount of Rs. 36,94,642/ . The AA has not cited any reason what so ever for rejecting the cess amount as to under which provisions the cess amount was rejected. The amount deposited was in cash in Govt. exchequer, as claimed and was left unutilized. Therefore, the appellants wanted this amount to be refunded to them. 10. Further, the AA has not commented anything on the admissibility of interest as per section 11 BB of the Central Excise Act, 1944 which the appellants had claimed. 11. Thus, the Adjudicating Authority needs to examine the records and arrive at correct figures of actual amount of cess lying unutilized as well as provide the exact reason for rejecting the refund claim of cess paid in advance and take a decision on interest issue. It would be appropriate that the Adjudicating Authority examine these point and claim of interest by Appellants for which the matter needs to be recorded to Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity of hearing was provided to the petitioner. 6.1. It is also reiterated [and something which we had noticed in the proceedings held on 13.09.2021] that, although, the demand was more than Rs.50,00,000/-, no consultation prior to issuance of show-cause notice took place in the instant matter, contrary to the provisions of the master circular dated 10.03.2017, issued by the Central Board of Excise and Customs. 6.2. Both these aspects have not been disputed by counsel for the respondents. 7. It is also the contention of Mr Agarwal that the refund amounting to Rs.2,32,09,285/- stood already sanctioned via the Order-in-Original dated 03.01.2019. 7.1. Mr Agarwal says that, as noted both by the Commissioner (Appeals-I) in the order dated 30.05.2019 and in the show-cause notice which followed i.e., the show cause notice dated 20.02.2020, this aspect i.e., the non-payment of interest on the said amount i.e., Rs.2,32,09,285/- stands noticed. 7.2. It is Mr Agarwal s submission that the petitioner had claimed the refund via an application dated 02.11.2017, and, therefore, as per Section 11BB of the Central Excise Act, 1944 [in short the 1944 Act ], the petitioner should h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner on the amount which had already been sanctioned towards refund i.e., Rs.2,32,09,285/-. 10.2. Instead of confining itself to these aspects of the matter, the adjudicating authority, inexplicably, reopened the entire assessment proceedings and concluded that there was short payment of tax. Resultantly, there are, in effect, two Orders-in-Original. 10.3. In the earlier Order-in-Original, as noted above, which is dated 03.01.2019, the adjudicating authority clearly finds that out of the refund claim made by the petitioner amounting to Rs. 2,69,03,927/-, the petitioner was entitled to Rs.2,32,09,285/-, after adjusting tax and cess amounting to Rs.36,94,642/-. 10.4. Pertinently, the Commissioner (Appeals-I) did not set aside this part of the order i.e., sanctioning refund amounting to Rs.2,32,09,285/-. Therefore, for the adjudicating authority now, to issue directions which tantamount to not only rejecting the claim made by the petitioner towards tax and cess amount, but also have the effect of seeking to recover tax and interest, as well as penalty, is rather inexplicable. 10.5. Considering the fact that assessment had already been carried out by the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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