TaxTMI 
TaxTMI 
2019 (11) TMI 1269
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....materials purchased by the appellants. The matters were adjudicated, the credit was denied. The said order was challenged before this Tribunal and this Tribunal remanded the back to the adjudicating authority for fresh adjudication. Again the matter was adjudicated by the adjudicating authority and the credit was denied and the ordered for recovery of the same. The said order was again challenged before this Tribunal and this Tribunal vide order dt.5.9.2018 set aside the adjudication order. Consequently, the amount of deposit during the course of investigation as well as in terms of said order of this Tribunal became refundable to the appellant. The appellants filed refund claims before the adjudicating authority and the same were sanctioned. The appellants further sought interest on the said refund from the date of deposit till its realization. The said claim of the interest was rejected by the authorities below. Therefore, the appellant are before me. 3. Ld. Counsel for the appellant submits that the amount deposited during the course of investigation was always been deemed to be under protest as held in the various judgements, namely, CCE vs. Pricol Limited-2015 (320) ELT 703....
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....rein this Tribunal has observed as under:- "11. The contention of the Ld.AR is that in terms of Section 35FF of the Central Excise Act, 1944, the interest on delayed refund is to be paid after 3 months from the date of communication of the order. When specific statute has been made, therefore, the decision in the case of Sandvik Asia Limited (supra) is not applicable to the facts of this case on the ground that the said decision has been delivered by the Hon'ble Apex Court in the context of Income Tax Act whereas we are dealing with Central Excise Act provisions. I find that whether the provisions of Income Tax Act and the provisions of Central Excise Act are pari material or not. The same has been examined by this Tribunal in the case of Donar Foods reported in 2017 (346) ELT 612(Tri.-Chan.) wherein this Tribunal observed as under:- "27. We have seen both decisions referred before us. The decision in the case of M/s. Cynamid India Ltd. is with regard to the Income-tax Act and as per Section 2(29BA) of the Income-tax Act, 1961 the term "manufacture" with its grammatical variation means a change in non-living physical object or article - (a) resulting in t....
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.... as a result of dehusking and are covered by the term 'agricultural product'. 31. Therefore, we hold that the test of manufacture has been failed as the goods are not manufactured goods as per Section 2(f) of Central Excise Act, accordingly, the question of excisability does not arise. Therefore, the Issue No. 1 is answered in favour of the appellants." The said decision of this Tribunal has been affirmed by the Hon'ble Apex reported 2017 (354) ELT A-57(SC) wherein "It was also held that the definition of 'manufacture' under Section 2(f) of the Central Excise Act, 1944 is pari materia to the definition provided under Section 2(29BA) of the Income-tax Act, 1961." Therefore, I find no force in the arguments advanced by the Ld.AR that the decision of Income Tax Act is not applicable to the Central Excise Act whereas the provisions of both Acts are pari materia. Therefore, the argument advanced by the Ld.AR is turned down and not acceptable. 12. He further made reliance on the decision of Hon'ble Apex Court in the case of ITC Ltd.(supra). 13. I have gone through the case laws relied upon by the Ld.AR. In the case of ITC Ltd.(supra), the ....
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....urt 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 interest was paid only at t....
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....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 of 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 r....
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....4. Now, the sole question remains to be considered 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 pre-deposit of the delayed refund within two months, it has to be construed that, the Court meant the rate of interest which ....