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TMI Blog2024 (3) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) had rejected the appeal vide Order-in-Appeal No. 91/2012 dated 16.05.2012. Appeal against the said order was filed before this Tribunal. Vide Final Order No. 649/2012 and the Stay Order No. 1147/2012 both dated 15.10.2012, Tribunal directed the appellant to deposit an amount of Rs.8,00,000/- and remanded the matter back to Commissioner (Appeals) for adjudication on merits. The said amount was deposited by the appellant. Pursuant to those directions of remand and after the deposit of said amount of predeposit, Commissioner (Appeals) vide Order-in-Appeal No. 225/2018 dated 27.03.2018 allowed the appeal with the consequential relief. It is pursuant to the said order that the appellant filed an application praying for refund of the said amount of pre-deposit amounting to Rs.8,00,000/- along with the interest vide its application dated 30.09.2020. However, a show cause notice dated 19.10.2020 was served upon the appellant proposing that appellant is not entitled for getting any interest. The said proposal was accepted vide Order-in-Original No. 01/2020-21 dated 28.12.2020. The appeal against the said order has been rejected vide the order under challenge hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned that the entitlement of interest has rightly been rejected. Para 13 of the order under challenge has been impressed upon. Learned Departmental Representative has impressed upon no infirmity in the order when the payment of interest has been denied to the appellant with respect to the submissions of appellant for claiming interest at the rate of 12%. Learned Departmental Representative has relied upon the recent decision of Hon'ble High Court of Delhi in Civil Miscellaneous Application No. 48489/2023 (Stay), where the rate of interest has been directed as at the rate of 6%. With these submissions learned Departmental Representative has prayed for the appeal to be dismissed. 6. Having heard the rival contentions, perusing the records and also keeping in view the submissions put forth. 7. It is observed that the amount in question i.e. of Rs.8,00,000/- is admittedly an amount which was deposited by the appellant for filing appeal before Commissioner (Appeals) when the duty demand as was proposed vide Show Cause Notice dated 01.12.2009 was confirmed by the original adjudicating authority vide its order dated 31.01.2011. This particular admission is sufficient for me to hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filling.] [(Explanation.-For the purposes of this section "duty demanded" shall include,- (i) amount determined under section 11D; tc" (i) amount determined under section 11D;" (ii) amount of erroneous CENVAT credit taken; tc" (ii) amount of erroneous CENVAT credit taken;" (iii) amount payable under rule 57CC of Central Excise Rules, 1944, tc" (iii) amount payable under rule 57CC of Central Excise Rules, 1944;" (iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; tc" (iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004," (v) interest payable under the provisions of this Act or the rules made thereunder.] tc" (V) interest payable under the provisions of this Act or the rules made thereunder.]" Section 35F in the Central Excise Act, 1944 w.e.f. 06.08.2014 35F. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] Section 35FF in the Central Excise Act, 1944 w.e.f. 06.08.2014 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 refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, not below five 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, 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 35FF as it stood before the commencement of the said Act.] 10. From the facts on record it is observed that the refund application was filed in the Year 2020. For Section 35FF as amended it is the date of application seeking refund which is relevant. I draw my support from the decision of M/s. Riba Textile Ltd. (supra) wherein it has been held as follows: "6. On going through the decision cited by learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority is stayed by a superior court or tribunal, 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 communication of the order of the appellate authority, till the date of refund of such amount." 17. On-going through the provisions of both Income Tax Act, 1961 and Central Excise Act, 1944, the interest on delayed refund is payable after expiry of 3 months from the date of granting refund or from the date of communication of order of the appellate authority, which are parimateria. Therefore, the decision of Hon'ble Apex Court in the case of Sandvik Asia Ltd. (supra) is law of land, in terms of Article 14 of the Constitution of India which is to be followed by me, wherein the Hon'ble Apex has observed as under:- "45. The facts and the law referred to in paragraph (supra) would clearly go to show that the appellant was undisputably entitled to interest under Sections 214 and 244 of the Act as held by the various High Courts and also of this Court. In the instant case, the appellant's money had been unjustifiably withheld by the Department for 17 years without any rhyme or reason. The interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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; remuneration or wages given to an employee or officer." 47. There cannot be any doubt that the award interest on the refunded amount is as per the statute provisions of law as it then stood and on the peculiar facts and circumstances of each case. When a specific provision has been made under the statute, such provision has to govern the field. Therefore, the Court has to take all relevant factors into consideration while awarding the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered is what is the nature of interest that the petitioner is entitled to get. As discussed above in the judgment Commissioner of Central Excise v. ITC (supra), the Apex Court confined the interest to 12% and further 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) E.L.T. 3 (S.C.), 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 8-12-2004 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest at 12% has been allowed. Therefore, following the judicial discipline, I consider it appropriate that interest in this case also is to be allowed @ 12%. Accordingly, original adjudicating authority is directed to workout the differential interest amount and make the payment to the appellants." 21. As the provisions of section 243 Income Tax Act, 1961 and section 35FF of Central Excise Act, 1944, are pari- material. Therefore, following the decision of Hon'ble Apex Court in the case of Sandvik Asia Ltd. (supra) and Sony Pictures Networks India Pvt. Ltd. (supra) I hold that the appellants are entitled to claim interest from the date of payment of initial amount till the date its refund @ 12% per annum." 7. As this Tribunal has examined the issue in details in the case of M/s Marshall Foundry & Engg. Pvt. Ltd. (supra), therefore, I hold that the appellant is entitled to claim the interest on delay refund from the date of deposit till its realization." 11. Resultantly, it is held that Commissioner (Appeals) has wrongly relied upon the pre amended Section 35FF for denying the entitlement of interest to the appellant. The appellant is held entitled for the same. The decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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