9911796707
TMI Blog2023 (5) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the impugned Order-in-Original and nothing beyond than that and such ground of payment of interest was not the part of adjudication of the impugned Order-in-Original which is examined by the Learned Tribunal? b) Whether on the facts and circumstances of the instant case the impugned order of the Learned Tribunal dated 14th December, 2020, as it directed to pay interest on the entire amount deposited for the period from the date of deposit with the Government till the said amount was transferred to the Registrar General of the Hon'ble High Court, is perverse inasmuch as per incuriam? c) Whether the impugned order of the Learned Tribunal dated 14th December, 2020, as it directed to pay interest on the entire amount deposited for the period from the date of deposit with the Government till the said amount was transferred to the Registrar General of the Hon'ble High Court, is perverse and exceeded its jurisdiction as it failed to appreciate that the Hon'ble Division Bench of the High Court, by its order dated 14th August, 2019, has made it clear that no such interest is payable to the writ petitioner/the respondent herein on the entire amount as deposited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to refund with interest. By order dated 30th June, 2016, WP No. 3137 of 2013 was allowed thereby the show cause and the order in original were quashed. The learned Writ Court also directed that the respondent/assessee is entitled not only to a refund of the sum of Rs. 1,51,66,500/- and a sum of Rs. 50,00,000/- which he had deposited pursuant to the Court's order but also along with interest at the rate of 10% from the date of deposit till the date of payment. The Court also directed that the refund should be granted within a period of four weeks from the date of the said order. 8. Challenging the said order dated 30th June, 2016 by which the writ petition was allowed, the revenue preferred intra-Court appeal before this court in MAT 1609 of 2016. The Division Bench by judgment dated 16th February, 2017 held that the respondent/assessee should challenge the correctness of the order of adjudication passed by the Commissioner of Service Tax, Kolkata dated 12th November, 2012 by filing an appeal before the learned Tribunal and that the learned Writ Court committed mistake in entertaining the writ petition. Accordingly, the respondent/assessee was directed to prefer appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been disclosed. 12. Be that as it may, we are to consider as to whether the learned Tribunal was justified in granting interest. This issue has been dealt with as the sixth issue by the tribunal and we extract the finding recorded by the learned tribunal on the said issue. "79. The appellant has also claimed interest from the date the amount was deposited by the appellant in pursuance of the impugned order till the date amount was transferred to the Registrar General of the Calcutta High Court. 80. It transpires from the records that after the passing of the order dated November 12, 2012 by the Commissioner, the appellant deposited the confirmed demand of Rs. 1,51,66,500/- on February 26, 2014 and subsequently also deposited an amount of Rs. 50 lacs on March 21/26, 2014 in compliance of an interim order dated March 10, 2014 passed by the Calcutta High Court, in the Writ Petition filed by the Commissioner. The said Writ Petition filed by the appellant was allowed by a learned Judge of the High Court on June 30, 2016 and the amount deposited was directed to be refunded with interest at the rate of ten per cent per annum from the date of deposit till the date of payment. The Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ten per cent per annum. This amount shall be paid to the appellant within a period of one month from the date of this order, failing which the appellant would be entitled to get interest at the same rate from the date of this order upto the date of payment of the amount." 13. It is the submission of the learned senior counsel for the appellant that the learned Tribunal had heard the argument and reserved judgment on 17th January, 2020, but the decision was rendered only on 14th December, 2020 and this being contrary to the CESTAT Procedure vide order No. 4 of 2019 dated 17th July, 2009. The order is to be held to be non est and the appeal should be directed to be heard afresh. In this regard, the learned senior counsel has made elaborate reference to the procedure dated 17th July, 2009. 14. Learned Advocate appearing for the respondent/assessee, on the other hand, had placed before this Court judgments of the Hon'ble Supreme Court in R.C. sharma v. Union of India reported in (1976) 3 SCC 574; Anil Rai v. State of Bihar reported in (2001) 7 SCC 318; Devang Rasiklal Vora v. Union of India reported in Shivsagar Veg. Restaurant v. Assistant Commissioner of Income Tax reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2013 when the respondent/assessee first questioned the correctness of the show cause notice and the order in original by filing a writ petition being WP/3137/2013. In the said writ petition an order was passed on 12th February, 2013 wherein the Court while refusing to grant an order of interim stay held that if the respondent/assessee succeeds in the writ petition, he will be entitled to claim refund of the entire amount together with interest. Therefore, such right to claim interest not only emanates from the statutory provision of Section 11BB of the Central Excise Act but also pursuant to the orders passed by this Court in the writ petition filed by the respondent/assessee before this Court. This order passed by the learned writ Court binds the intra parties namely, the department as well as the respondent and, therefore, it will be too late for the day for the appellant/department to contend that no interest is payable. 16. That apart, the learned writ Court while allowing the writ petition by order dated 30th June, 2016 had quantified the quantum of interest at the rate of 10%. The factual matrix has been thoroughly examined by the Tribunal and interest has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
