AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (12) TMI 122
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....2 before this Tribunal, this Tribunal vide order dated 12.02.2012 asked the appellant to make a pre deposit amount of Rs. 15,00,000/- in terms of Section 35F of the Central Excise Act, 1944. The appellant deposited the said amount of Rs. 15,00,000/- on 15.05.2013. The appeal was finally disposed on 05.07.2018 by setting aside the impugned order. Thereafter, the appellant filed refund claim of Rs. 15,00,000/- deposited by them on 12.09.2018. On 19.02.2019, the adjudicating authority held that the refund was admissible to the appellant but was appropriated the amount against Rs. 17,67,816/- as penalty and Rs. 4,56,484/- as interest confirmed vide order dated 15.12.2011 by holding that these demands were not set aside by the Final Order dated 05.07.2018. Thereafter, on 08.03.2019, the appellant filed a application for Rectification of mistake before this Tribunal and on 01.04.2019 the application for Rectification of mistake was allowed. The appellant also filed appeal before the Ld. Commissioner (Appeals) on 18.04.2019. On 21.05.2019, this Tribunal passed the Final order again by setting aside the demand of interest and penalty specifically. On 12.06.2019, the matter before Commissio....
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....d. - 2019-TIOL-3596-CESTAT-MUM without considering the decision of Sandvik Asia Limited vs. Commissioner of Income Tax- 2006 (196) ELT 257 (S.C.). Further, Revenue has relied on the decision of Commissioner of CE & ST- vs. M/s Som Flavour Masala Pvt. Ltd. - 2020 (6) TMI 60-CESTAT CHANDIGARH. The said decision is not applicable to the facts of this case as in the said decision, the decision of Hon'ble Madras High Court in the case of UCAL Fuel Systems Ltd. (supra) has not been considered. 4. The Ld. AR opposed the contention of the Ld. Counsel for the appellant and submitted that as the appellant had failed to submit that the copy of the order of this Tribunal dated 21.05.2019 before the Ld. Commissioner (Appeals), therefore, the Ld. Commissioner (Appeals) could not take the cognizance of the order passed by this Tribunal. He also submitted that this Tribunal has not issued the order within one month of the hearing, therefore, the department had no occasion to deal the issue in hand. He further submitted that as this Tribunal has already dealt the issue vide order dated 21.05.2019 and the impugned order has been passed before submission of the said order before the Ld. Commissi....
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....he appellant on 15.05.2013 in compliance to the provision of Section 35F of the Central Excise Act, 1944, therefore, the provision of Section 35FF as they existed on the date of pre deposit are applicable and in that case no interest is payable for the period from the date of deposit till expiry of three months from the date of communication of the final order of this Tribunal dated 21.05.2019. To support of this contention that he relied on the decisions in the cases of M/s IFP Products (P) Ltd. vs. UOI in Writ Tax Appeal No. 653 of 2017, CC & GST, MUMBAI VS. JUHU Beach Resort Ltd. - 2020 (371) ELT 622 (Tri.- Mumbai) and CCE & ST, Rohtak vs. Som Flavour Masala Pvt. Ltd. vide Final Order NO. 60385/2020 dated 02.03.2020. 7. In response to the submission made by the Ld. AR, the Ld. Counsel for the appellant submitted that there has been inordinate delay in sanctioning the refund claim by the authorities, therefore, the appellant is entitled to claim interest on refund amount in terms of provision of Section 35FF of Central Excise Act, 1944 from the date of deposit till actual refund. 8. After hearing both the sides, I find that the merits of the case have not been disputed either o....
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....ilitators for the tax payer; whereas in this case, the act of the Revenue Officer does not seem to be a facilitator for the tax payer. Therefore, as held by this Tribunal, the appellant is entitled to claim the refund of Rs. 15 lacs. Furthermore, during the course of arguments, it came to the knowledge of the Bench that the appellant filed the appeal against the order of the adjudicating authority appropriating the amount of refund claim before the Commissioner (Appeals) and intimated to the ld. Commissioner (Appeals) vide letter dt. 12.06.2019 that this Tribunal has allowed the refund to the appellant on 21.05.2019. Instead of taking note of the said fact, the ld. Commissioner (Appeals) dismissed the appeal filed by the appellant without taking note of the decision of this Tribunal on 22.07.2019, whereas the order of this Tribunal was uploaded on the website itself on 01.07.2019. The act of the ld. Commissioner (Appeals) cannot be appreciated. 12. Now, the issue comes that from which date the appellant is entitled to claim the interest till its realisation. Admittedly, as per Section 35FF of the Act, the appellant was entitled to claim the interest on delayed refund after three m....
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....y the Hon'ble Allahabad High Court, wherein the Hon'ble High Court has observed as under: "The aforesaid provision of Section 35FF of the Act was amended by the Finance Act No. 25 of 2014 with effect from 06.08.2014 and it was provided that where any amount deposited by the party under Section 35F of the Act is required to be refunded consequent upon the order of the Appellate Authority, it will carry an interest at the specified rate till the date of refund. It permits payment of interest at the specified rate for the entire period, the amount remains deposited with the authority. However, the aforesaid provision has been subjected to a proviso, which lays down that if any amount has been deposited prior to the enforcement of the Finance Act No. 25 of 2014 i.e. before 06.08.2014, it shall continue to be governed by the unamended provision of Section 35FF of the Act, which means that in cases of deposit made prior to 06.08.2014, interest would be payable only if the amount is not refunded within a period of three months from the date of communication of the appellate order. Apart from the above provision, there is no other provision, which permits payment of interest on the amo....
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....ch came up for consideration, was whether the Tribunal was justified in rejecting the claim of interest on the amount refunded on the ground that there is no provision for paying interest on such amount. The aforesaid question was answered in favour of the assessee and against the Department holding that where the amount was illegally detained by the Revenue and ultimately, refunded, the assessee is entitled to interest even though there may not be a specific provision to that effect. This was laid down following the decision of the Apex Court in the case of Union of India through Director of Income Tax Vs. TATA Chemicals Limited (2014) 6 SCC 335, wherein it was held that when the collection is illegal, there is corresponding obligation on the Revenue to refund such amount with interest. The aforesaid decisions would not be any help of the petitioner inasmuch as there was neither any illegal detention nor any unauthorized collection of any amount by the Revenue, rather the said amount was deposited by the petitioner pursuant to the interim direction of the Tribunal. The law is well settled that the taxing statutes have to be construed strictly and when there is no specific pr....