2025 (9) TMI 1102 - HC - Customs

Appeal allowed: pre-deposit retained its character, not penalty payment; Revenue liable to pay interest after three months.

HC allowed the appeal, holding that the pre-deposit retained its character as a pre-deposit and was not a payment of the penalty; CESTAT erred in treating ... Liability of Revenue to pay interest on delayed refund of pre-deposit of penalty amount when such pre-deposit was not returned/ refunded to the appellant within three months after the appeal was allowed in favour of the appellant - HELD THAT:- It is not in dispute that the appellant has made a pre-deposit of Rs.10 Lakh pursuant to the stay order granted by the CESTAT, however, it does not loses the character of pre-deposit and it cannot be considered as a payment towards the penalty for discharge of the outstanding liability of penalty as the appellant was contesting the levy of penalty by preferring an appeal before the CESTAT. It appears that the CESTAT has lost sight of the distinction between the concept of “pre-deposit” and “payments made towards the outstanding demand of either duty, interest or penalty”. The CESTAT would have been justified if the appellant had paid the penalty and thereafter by the order of the CESTAT it was set-aside and there is a delay in refund of the penalty, the refund amount which may have come into existence after setting aside of such penalty, then question of payment of refund would not arise, as Section 27A of the Customs Act, 1962, clearly provides for interest on the refund of the duty amount. Considering the facts that if there is no dispute about the facts as recorded by the CESTAT to the effect that appellant has made a claim of interest on amount of pre-deposit made by it pursuant to the order of CESTAT, the appellant is entitled to the interest on the amount of refund on the expiry of three months from the date of application till the date of payment - the question is answered in favour of the Assessee appellant and against the Revenue. Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether interest is payable by the Department on delayed refund of a pre-deposit made pursuant to a tribunal stay order, when the pre-deposit is ultimately refunded after the appeal is allowed. 2. Whether a pre-deposit made under a stay order participates in the character of 'duty' or 'penalty' for the purpose of statutory provisions prescribing interest on delayed refunds (specifically the provision corresponding to interest on delayed refunds of duty). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Entitlement to interest on delayed refund of pre-deposit Legal framework: The statute prescribes interest on delayed refunds of 'duty' where refund ordered under the relevant refund provision is not made within three months of application; the provision also contains an explanation deeming certain appellate or judicial orders of refund to be orders under the refund provision for interest purposes. Precedent Treatment: The apex-level decision that considered pre-deposits and directed payment of interest in terms of a draft circular was followed by a line of authorities that have awarded interest on late refunds of pre-deposits insofar as the Board's circularal treatment was made part of judicial direction; other tribunals and High Courts have distinguished cases where the payment was a redemption fine/penalty and held no interest payable. Interpretation and reasoning: The Court distinguished between (a) refunds of amounts that are duties properly falling within the statutory refund-and-interest regime and (b) pre-deposits made as a condition for prosecuting an appeal which do not, by their nature, become duty or penalty payments. The reasoning identifies (i) the statutory wording that confines interest to 'duty ordered to be refunded' and (ii) judicial authorities that treated pre-deposits as subject to interest only where a higher court or tribunal, in effect, directed interest by reference to a Board circular appended to that decision. The Court held that where a pre-deposit is made pursuant to a stay order and the appellant contests liability, the amount retains the character of a pre-deposit and does not become a payment of penalty or duty for purposes of the interest-on-duty provision. Ratio vs. Obiter: Ratio - Pre-deposits made under tribunal stay orders do not automatically acquire the character of duty/penalty; consequently, the statutory provision prescribing interest on delayed refunds of duty (the interest provision) does not, by its terms, apply to such pre-deposits. Obiter - Observations about practical reciprocity between demand and refund provisions and general compensatory nature of interest, insofar as not required to decide the core statutory question. Conclusion: The appellant is entitled to interest on the refund of the pre-deposit from the expiry of three months from the date of the refund application until payment, by virtue of the apex-level judicial direction incorporating the draft Board circular treatment of pre-deposits; the statutory interest-on-duty provision does not itself apply because a pre-deposit is not 'duty,' but judicial direction requires payment of interest on such pre-deposits when the higher court or tribunal has so ordered. Issue 2 - Characterisation of pre-deposit: 'pre-deposit' v. payment of penalty/duty and statutory consequence Legal framework: Statutory provisions draw a distinction between claims for refund of duty (with specified interest consequences) and other payments; interest is explicitly linked to 'duty ordered to be refunded' and to orders passed under the refund provision. Precedent Treatment: A large-bench tribunal decision and subsequent authorities have held that redemption fines/penalties, when refunded as a consequence of appellate orders, do not attract statutory interest under the duty-refund provision; another apex authority directed payment of interest on pre-deposits by appending a draft Board circular to its order, thereby mandating interest in appropriate cases despite statutory language. Interpretation and reasoning: The Court emphasized that a pre-deposit paid pursuant to a tribunal's stay order remains a pre-deposit and is not tantamount to a voluntary payment of penalty or acceptance of liability. Consequently, statutory sections that create interest on delayed refunds of duty are inapplicable to pre-deposits by their terms. However, the Court also recognized that the apex decision which appended a draft circular effectively created a basis for awarding interest on pre-deposits when a higher forum's order renders the pre-deposit refundable and the Board's circularal approach is enforced by the court/tribunal. Ratio vs. Obiter: Ratio - Pre-deposits retain their character and do not become duty/penalty for purposes of the statutory interest provision; where interest is granted on pre-deposits it is pursuant to judicial direction implementing administrative circularal policy rather than a direct application of the statutory interest provision. Obiter - Remarks about the Department's lack of power to collect or pay interest on delayed payments of penalty when penalty is paid late by a person. Conclusion: The pre-deposit cannot be treated as payment towards the penalty or duty so as to attract the statutory interest provision; entitlement to interest on refund of pre-deposits arises from the judicially directed/compliance-based application of the Board's circularal approach as recognized by apex authority, and not from the text of the interest-on-duty statute itself. Cross-reference and Final Determination Cross-reference: The analysis of Issue 1 and Issue 2 are interlinked - the statutory interest provision does not by itself apply to pre-deposits (Issue 2), but judicial directions incorporating the Board's draft circular have been held to require payment of interest on pre-deposits in cases where appellate or judicial orders make such pre-deposits refundable (Issue 1). Final determination: The taxpayer who made a pre-deposit pursuant to a tribunal stay order and subsequently succeeded on appeal is entitled to interest on the refunded pre-deposit from the expiry of three months from the date of the refund application until payment, notwithstanding that the statutory interest-on-duty provision does not itself apply to pre-deposits; the Tribunal's contrary conclusion treating the pre-deposit as payment of penalty/duty for the purpose of denying interest was set aside.