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TMI Blog2023 (12) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to Rs. 23,85,67,946/- along with the interest and penalty and confiscation of excess TMT seized and confiscation of Indian currency of Rs.6,30,000/-, Rs.60,00,000/- and Rs.23,00,000/- as were seized from the various premises during the searches, respectively. Penalties were proposed to be imposed upon the remaining appellants. 1.2 During the investigation, Appellant No. 1 deposited Rs.13,50,000/- in their RG-23A on 15.09.2010 and also deposited cash amounting to Rs.2,00,00,000/- on 29.11.2010. The said amount totalling to Rs.2,13,50,500/- was proposed to be appropriated against the aforesaid demand. The said proposal was confirmed vide Order-in-Original No. 80-81/2012 dated 31.12.2012. The order was appealed before this Tribunal. Vide the Stay Order no. 59296-59309/2013 dated 23.09.2013, directions to deposit Rs. 4 crores in addition to the amount already deposited was given. However, the Tribunal did not consider any merit about the currency seized totaling to Rs. 89 lakhs. Resultantly, a writ petition was filed before Hon'ble High Court of Rajasthan. Vide the order dated 20.12.2013, the said amount of Rs. 89 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough has held that it is not the case of unjust enrichment, still has upheld the Order-in-Original on the aspect of interest. It is submitted that Revenue has withheld the pre deposit amount of Rs.6,13,80,500/- (Rs.5,24,50,000 + Rs.60,00,000 + Rs.6,30,000 + Rs.23,00,000) without any authority of law as the demand in question has been set aside by this Tribunal vide their order dated 20.10.2017. It is impressed upon that since the appellants remained deprived of the money which remained with the department for a long period, hence the appellant need to be compensated. The interest should have been paid suo moto by the department. 3.1 Learned counsel has impressed upon that the amount in question was in the nature of pre deposit, hence the time bar of Section 11B has wrongly been invoked by Commissioner (Appeals). It is impressed upon that as per department's own circular dated 08.12.2004, the amount which is treated as pre deposit is liable to be refunded along with the interest at the rate of 12%. The Commissioner (Appeals) is alleged to have ignored the relevant decision of the superior courts. To support her submissions, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner, CGST, Final Order No. 51187/2022 dated 15.12.2022, CESTAT NEW DELHI (ii) Sky Airways Vs. Commissioner, CGST, Final Order No. 51187/2022 dated 15.12.2022, CESTAT NEW DELHI (iii) Sun Pharmaceuticals Industries Ltd. Vs. Commissioner of C.Ex., Chennai, reported as 2005 (185) E.L.T. 253 (Tri.-LB) (iv) Commissioner of Central Excise, Hyderabad Vs. I.T.C. Ltd., reported as 2005 (179) E.L.T. 15 (S.C.) (v) Union of India Vs. Tata SSL Ltd., reported as 2007 (218) E.L.T 493 (S.C.) (vi) Commissioner of Income Tax, Gujarat Vs. Gujarat Fluoro Chemicals, reported as 2017 (51) S.T.R. 236 (S.C.) Impressing upon no infirmity in the order, the appeal is prayed to be dismissed. 5. Having heard the rival contentions and perusing the entire records, we observe and hold as follows: 5.1 The order of Commissioner (Appeals) has been challenged on the ground that the appellants were entitled to be paid interest at the rate of 12% per annum on the total amount of the refund from the date of its deposit till the date of its actual payment. To adjudicate the same foremost we need to look into the relevant provisions which entitle assessee for the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Industries Vs. CCE, Jaipur Rajkumar Pokharna Vs. CCE, Jaipur - I Sunil Kumar Pokharna Vs. CCE, Jaipur - I Rajasthan Commercial House Vs CCE, Jaipur 1. Appeal Number/s E/50138/2020 E/50139/2020 E/50140/2020 E/50141/2020 2. Refund Application 21.12.2017 3. OIO 13.02.2018 4. OIA (Refund) 15.10.2019 5. Amount deposited Rs. 5,24,50,000/- Rs. 60,00,000/- Cash seized Rs. 6,30,000/- Cash seized Rs. 23,00,000/- Cash seized 6. Date of payment of these amounts 29.11.2011 2,00,00,000/- 14.09.2010 14.09.2010 17.09.2010 30.01.2014 3,11,00,000/- pursuant to bail order 15.09.2010 13,50,500/- During investigation from CENVAT A/c 7. Tribunal Final Order entitling the impugned refund claim No. 57285-57299/2017 dated 20.10.2017 Total Demand Rs.23,34,20,556/-: Demand Rs. 7,33,57,221/- set aside; Demand Rs. 16,00,60,335/- set aside and remanded to Commissioner (Department has appealed this order before the Rajasthan High Court) 5.4 We observe that the amount of seized c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Excise Act deals with interest on the amount collected in excess of the duty. It provides that where an amount has been collected in excess of the duty from the buyer of such goods, the person who is liable to pay such amount shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette. 33. There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate interest has not been prescribed, when revenue deposit is required to be refunded." The Tribunal in the said case had allowed the interest on the refund amount from the date of deposit till the date of payment thereof. 5.6 We further observe that Hon'ble Supreme Court also in the case of Commissioner of Customs (Import), Raigad vs M/s. Finacord Chemicals (P) Ltd. in Civil Appeal no. 1633-1638 of 2004 as decided on 08.04.2015 reported as 2015 (319) E.L.T. 616 (S.C.) while discussing the liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre- deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable unless such order is stayed by a competent Appellate Authority. 5.4 In the event of a remand, refund of the pre-deposit shall be payable along with interest. 5.5 In case of partial remand where a portion of the duty is confirmed, it may be ensured that the duty due to the Government on the portion of order in favour of the revenue is collected by adjusting the deposited amount along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized currency has been set aside and the fact is that the Department has earned interest during the period the currency was retained by it, it was held that payment of interest could not be denied merely for the reason that there is no express statutory provision. Bombay High Court also in the case of Union of India Vs. M P Desal reported as 2019 (366) ELT 251 (Bom) has held that amount seized in cash by the authorities is to be refunded along with the interest. Though in this case the rate of interest was held to be simple at the rate of 8%. However, there already has been decisions of Kerala High Court in the case of Sony Pictures Networks India Pvt. Ltd. Vs. UOI reported as 2017 (353) ELT 179 (Ker) wherein the decision of Hon'ble Apex Court in the case of Kuil Fireworks Inds. Vs. Collector reported as 1997 (95) ELT 3 (SC) is relied and it was held that rate of interest while refunding the amounts has to be 12% of the amount refunded. 5.9 We also draw our support from the decision of Hon'ble Apex Court in the case of Sandvik Asia Ltd. which is now the law of land in terms of Article 141 of the Constitution of India. The Hon'ble Apex Court, in the said ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice and the rule of law. COMPENSATION: 46. The word 'Compensation' has been defined in P. RamanathaAiyar's Advanced Law Lexicon 3rd Edition 2005 page 918 as follows: "An act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal value for his loss, or be made whole in respect of his injury; the consideration or price of a privilege purchased; some thing given or obtained as an equivalent; the rendering of an equivalent in value or amount; an equivalent given for property taken or for an injury done to another; the giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; a recompense in value; a recompense given for a thing received recompense for the whole injury suffered; remuneration or satisfaction for injury or damage of every description; remuneration for loss of time, necessary expenditures, and for permanent disability if such be the result; remuneration for the injury directly and proximately caused by a breach of contract or duty; remuner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of I.T.C. Ltd. (supra) has been relied upon, where the Apex court confined the rate of interest to 12% and further held that any judgment or decision of any high court taking a contrary view will be no longer a good law. The case law as relied upon by the appellant has been discussed by this Tribunal in the case of Riba Textiles Ltd. (supra) holding that those decisions are not applicable for the refund of the amount of pre deposit. 5.13 The above entire discussion makes it clear that the amount in question was an amount in the form of pre-deposit. Hence, it is the refund in terms of Section 35FF. However, the interest on sanctioned amount of refund has been denied on the ground that refund has been sanctioned within three months from the date of communication of the order of appellate authority in terms of the pre amended Section 35FF of Central Excise Act, 1944. We observe that Section 35FF stands amended w.e.f. 06.08.2014 read as follows: Section 35FF. Interest on delayed refund of amount deposited under Section 35F.- "Where an amount deposited by the appellant under section 35F is required to be refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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