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TMI Blog2025 (3) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and no service tax was payable. Therefore, the rates of interest notified for refunds under section 35FF do not apply to it's case and it is entitled to interest @ 12% per annum. The case of the Revenue is that the amounts deposited by the appellant were considered towards the pre-deposit under section 35F while admitting the appeal and therefore, the rate of interest of 6% notified by Notification no. 24/2014-CE (NT) dated 12.8.2014 would apply to the appellant as they would apply to any other assessee. The appellant cannot claim a higher rate of interest than what was notified. 3. The issues which fall for consideration in this appeal is whether the appellant are: A) What is the nature of the amount deposited by the appellant during investigation towards service tax, which was appropriated by the adjudicating authority towards confirmed demand of service tax, which was, on appeal, set aside by the tribunal? B) Will the appellant be entitled to interest on refund of the above amount as prescribed under section 11 BB under section 35FF of the Central Excise Act, 1944 as made applicable to Service Tax by virtue of section 80 of the Finance Act, 1994 or at 12% per ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust a revenue deposit? 8. There are no separate provisions for refund of service tax under Chapter V of the Finance act 1994 [Finance Act]. The provisions of sections 11B, 11BB, 35F, 35FF have been made applicable to service tax by section 83 of the Finance act, 1994. Section 11B deals with refund of excise duty and when applied to service tax, it deals with refund of service tax. Section 11BB deals with interest on refund under section 11B.The relevant portions of these sections are below: "Section 11B. Claim for refund of duty and interest, if any, paid on such duty . - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch class of applicants as the Central Government may, by notification in the Official Gazette, specify. Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). ******** Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means, - (a) ***** (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra)." 11. In this case, the SCN issued by the department proposing demand of service tax effectively modifying the assessment. This proposal was confirmed by the lower authorities. The amounts paid by the appellant during investigation were appropriated towards the service tax. Had there been no appeal or further orders by this Tribunal, the amount paid by the appellant would have been Service tax. 12. On appeal, this Tribunal allowed the appeal and set aside the demand, i.e., the modification of the assessment as per the orders of the lower authorities was reversed by this Tribunal. As a consequence, the appellant became entitled to get refund as per section 11B. It applied for and got the refund. 13. Therefore, on the facts of this case and the law laid down by Supreme Court in ITC Ltd., the amount paid by the appellant was Service Tax which became refundable consequent upon the order of this Tribunal. Such refunds are payable as per section 11B and the relevant date for applying for such refunds as per Explanation B (ec) to section 11B is the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e,- (i) amount determined under Section 11D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under Rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rules, 2002 or the CENVAT Credit Rules, 2004. 15. The distinction between refund of pre-deposit made under section 35F and duty or service tax paid under section 11B is that the pre-deposit under section 35F can be a percentage of duty, fine or penalty. It must be deposited as a pre-condition for filing an appeal. If the pre-deposit is not made, there will be no right of appeal to the person aggrieved by the order. Section 11B, on the other hand, provides for refund of duty or service tax. If an amount is already paid as duty or service tax, it is reckoned while computing if any further amount needs to be paid to meet the mandatory requirement of pre-deposit under section 35F. Merely because such adjustment is made, the amount paid as service tax or fine or penalty does not become pre-deposit under section 35F. 16. Therefore, what was paid by the appellant was service tax as determined by the lower authorities in the adjudication proceedings. If there was no further order, nothing would have been r ..... 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