TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 161
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....& Service Tax Appellate Tribunal, Kolkata. The Hon'ble CESTAT had allowed the appeal vide their Order No. A-350/KOL/2010 dt. 26.05.2010 and consequently the appellants filed the above refund claim on 19.09.2011 alongwith the relevant documents. The adjudicating authority rejected refund claim as time barred. Aggrieved from the same, the appellants went in appeal before the Ld. Commissioner (Appeals). Vide order dt. 30.11.2012, the Ld. Commissioner (Appeals) rejected their appeal. Aggrieved from the same, the appellants have filed this appeal. 3. Ld. Advocate for the appellant submits that the limitation prescribed Under Section 11B of the Central Excise Act (the Act) is not applicable to the pre-deposit made under Section 35 of the Act sin....
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....to be refunded under Section 35 FF of the act. The Ld. Advocate also relied on the Board's Circular No. 984/8/2014-CX dt. 16.09.2014. Ld. Advocate also submits that the amount of Rs. 20 Lakhs was paid under protest and hence the limitation under Section 11B is not applicable. Ld. Advocate also pleaded for payment of interest for pre-deposit under Section 11BB of the Act as per the provisions contained in Section 35FF of the Act. It was also argued by the Ld. advocate that if the pre-deposit was duty, Section 35FF was not needed as Section 11BB would have taken care of the same. 4. Ld. AR reiterated the findings in the order of the Ld. Commissioner (Appeals) and relied upon the following case laws:- 1. Harinagar Sugar Mills Ltd. Vs. St....
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....3 with consequential relief. Petitioners prayer for refund of the amount deposited under Section 35F has not received a favourable response. On the contrary the impugned show cause notice is issued why the amount deposited should not be forfeited. In our judgment, the claim raised by the Department in the show cause notice is thoroughly dishonest and baseless. In respect of a deposit made under Section 35F, provisions of Section 11B can never be applicable. A deposit under Section 35F is not a payment of Duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief." The appeal filed by the Union of India against the said judgment was dismissed by the ....
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....bar of unjust enrichment. 4. The judgment of Miles India Ltd. Vs. Assistant Collector of Customs (supra) relate to the payment of duty under mistake of law which is not the case here. Similarly, the judgment of Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills (supra) is not in relation to refund of pre-deposit and hence is inapplicable. 5. The Judgment of Mafatlal Industries ltd. Vs. Union of India (supra) does not apply to the facts of this case as it deals with refunds under Section 11B of the Central Excise Act, 1944. The refund of pre-deposit as condition of hearing in appeal is not treated as refund falling under Section 11B as per the Board Circular dt. 02.01.2002. 10. The appellants have sought the interest on r....
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....of refund made by the Assistant Commissioner or Deputy Commissioner of Central Excise. In view of this explanation even when the order of refund is made by the Appellate Tribunal or any Court against an order of the Assistant Commissioner or Deputy Commissioner which was made under sub-section (2) of Section 11B, such Appellate order of the Tribunal or the court shall be deemed to be an order passed under the said sub-section (2) (of Section 11B) for the purpose of this section . Therefore, in cases where the appeals are filed in the Appellate Tribunal against the order rejecting the claim for refund wholly or partially rejecting the claim of refund with interest, the order of the Appellate Tribunal shall be deemed to be an order passed und....
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....ining the claim of interest of the present nature, cannot overlook the provisions of Section 11BB of the Act, which would apply in all cases of interest on delayed refunds. The decision in Kuil Fireworks Industries in which the Hon'ble the Supreme Court while directing the refund of duty, awarded interest cannot generate power to award interest for the Tribunal contrary to the provisions of Section 11BB of the Act since the award of interest under that decision is obviously relatable to the plenary powers of the Supreme Court. Even the award of interest by the High Courts in exercise of their writ jurisdiction will not constitute a ratio creating power of the Tribunal or revenue authorities to award interest contrary to the provisions of Se....