TMI Blog2023 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... e order by the Tribunal on 02.05.2008. The High Court of Kerala, in SONY PICTURES NETWORKS INDIA PVT. LTD. VERSUS THE UNION OF INDIA, THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF CUSTOMS, THIRUVANANTHAPURAM [ 2017 (5) TMI 864 - KERALA HIGH COURT] was examining a case, where the assessee was liable to pay refund amount on expiry of three months from the date of order dated 18.11.2002 passed by the Appellate Tribunal. It was held that even if the application was submitted late, the circulars dated 02.01.2002 and 08.12.2004 issued in respect of refund/return of deposits do not restrict payment of interest from the date of submission of application. In the present case, since the amount was deposited under Section 35F of the Central Excise Act, even a simple application could be made for claiming the refund and the refund was required to be returned along with interest - With respect to the interest, the judgments passed in Shreewood Products Pvt. Ltd. and Sony Pictures Networks India Pvt. Ltd. s cases have clarified that the department is liable to make payment of interest after the expiry of three months from the date the refund becomes due - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against the said order, filed by the appellant, was also dismissed vide order dated 17.12.2012 (Annexure A- 9) passed by the Commissioner (Appeals) on the ground of limitation. It was held that the amount of pre-deposit was duty and therefore, the limitation under Section 11B of the Central Excise Act, 1944 would apply. The appellant challenged the said order by filing an appeal before the Tribunal, which was allowed to the extent of refund of pre-deposit of Rs.20,00,000/- on the following ground:- (i) The amount deposited under Section 35F is not payment of duty but only a depoosit for availing the right of appeal; and (ii) That Section 11B does not apply to deposits made under Section 35F. Reference was made to a decision given by the Hon ble Bombay High Court in the case of Suvidhe Ltd. vs. Union of India, 1996 (82) ELT 177. However, the interest was denied on the ground that a show cause notice was issued within three months of the receipt of the refund claim. Aggrieved by the said order, the appellant has filed the present appeal. Learned counsel for the appellant has referred to a circular dated 16.09.2014 issued by the respondent-authority, which relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment passed in AFCONS Infrastructure Ltd. s case (supra) shows that therein, payment of interest was being demanded from the date when the refund became due and it was denied on the ground that payment was made within a period of three months when it became due and before three months, the assessee was not entitled to claim any interest. In the facts of the present case, the Tribunal allowed the appeal vide final order dated 26.05.2010 (Annexure A-3) and had the department returned the pre-deposit within three months i.e. by 26.08.2010, the assessee could not have claimed interest. In this backdrop, the benefit could have been denied to the present appellant itself as per AFCONS Infrastructure Ltd. s case (supra). But, in this case, Rs.20,00,000/-, as pre-deposit, were deposited pursuant to the order dated 22.05.1998. This amount became due after the final order was passed on 26.05.2010 (Annexure A-3). The predeposit was lying with the department from 1998 till 2010. The department was bound to allow the refund claim within three months from 26.05.2010. Application for refund was filed on 19.09.2011 (Annexure A-4). Instead of allowing the refund, which became due, a show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her held that any judgment/decision of any High Court taking contrary view, will be no longer good law. The said judgment is rendered, in my considered opinion under similar circumstances. So also in Kuil Fire Works Industries v. Collector of Central of Excise [1997 (95) ELT 3 ( SC), the pre-deposit made by the assessee was directed to be returned to him with 12% interest. I have also come across the judgment of the Calcutta High Court in Madura Coats Pvt. Ltd. v. Commissioner of C. Ex., Kolkata - IV [2012 (285) E.L.T. 188 (Cal.), wherein the peremptory directions of the Apex Court in the judgment of ITC Ltd. (supra) was considered and ordered 12 % interest, and further held that when the High Court directed the respondents to pay interest to the appellant in terms of the circular dated 08.12.2004 on the predeposit of the delayed refund within two months, it has to be construed that, the court meant the rate of interest which was awarded by the Supreme Court in the case of Commissioner of Central Excise v. ITC Ltd, which was the rate quantified by the Supreme Court in the absence of any statutory provisions in the Act in question. Even though various other judgments of various High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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