TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 870
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....led by the appellant pursuant to the order dated 31.01.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal [the Tribunal], sanctioned the refund claim with interest from the date the appellant became entitled to claim the refund (i.e. 01.12.2005) up to the date of order passed by the Tribunal (i.e. 31.01.2017). 2. Excise Appeal 70674 of 2019 has been filed by the Principal Commissioner for setting aside the order dated 28.05.2019 passed by the Commissioner (Appeals). In this appeal, cross-objections have also been filed by the appellant for dismissing the appeal filed by the Department. 3. The appellant is, inter alia, engaged in the manufacture of Non-Alcoholic Beverages Base [NABB], which is an excisable product. 4. On the basis of purported information/ intelligence that the appellant and its group companies were allegedly evading central excise duty by under booking and transferring cost on some group companies of NABB and mis-utilizing the modvat credit of duty paid on the inputs used in or in relation to the manufacture of NABB, investigation was initiated against the appellant. The officers visited the factory premises and the office premises of the appe....
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....o far as the NOIDA factories are concerned. 5. The Appellant is not contesting the demand relating to the sales tax issue. That demand, therefore, is confirmed. 6. When the main issue of charging including recoveries towards advertisement, the prayer of learned Counsel is that the advertisement cost of another product namely aerated waters cannot be in relation to the valuation of NABB and this position remains concluded by the decision of the Hon'ble Supreme Court in the Appellants own case in Civil Appeal No. 6460- 6483/99 dated 16.3.05. We find that the same view was taken by this Tribunal in Final Order No. No. 495-96/05 in our order dated 1.7.05 in Appeal No. E/1029-1030/90-A in the case of Bisleri Beverages (P) Ltd. and Parle (Exports) Pvt. Ltd.'s case. Thus it is clear that duty demand in regard to advertisement is not assessable. Therefore, the duty demand on that count is set aside. 7. The remaining Appeals of the Appellant company are against the penalties imposed on the manufacturers. The said penalty is in the light of the total duty demand, and that the duty demand is to be limited to a part of the demand originally confirmed. The penalty is also required....
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....nt shall be without authority of law and Article 365 of Constitution of India has not authorized Revenue to retain such amount. In the present case, the penalty was reduced to Rs. 10 lakh. Therefore, we allow Revenue to recover Rs. 10 lakh from Rs. 1.5 crore which was deposited by the appellant and direct the Original Authority to refund Rs. 8,36,185/- and Rs. 1,40,00,000/- and also pay the appropriate interest on the same. We do not pass any order in respect of bank guarantee since the matter was not subject matter of either the Order-in-Original or Order in-Appeal impugned. We allow the appeal as held herein above." (emphasis supplied) 13. The appellant, thereafter, filed a letter dated 24.05.2017 seeking refund of Rs. 1,48,36,185/- pursuant to the order dated 31.01.2017 passed by the Tribunal. 14. The Assistant Commissioner, by order dated 30.10.2018, sanctioned the refund of Rs. 1,48,36,185/- and granted interest to the appellant after the expiry of three months from the date of filing of the refund claim i.e. w.e.f. 01.12.2005. 15. The appellant felt aggrieved to the extent interest was not granted from the date of deposit of the amount and further interest was granted onl....
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....r of Noida Vide their letter C. No. V (15) JUD/CESTAT/FO/PAPL/N-1/238/2017/1856 dated 09.10.2017 informed that the Competent Authority has accepted CESTAT Final Order No. A/70145/2017-EX (DB) dated 31.01.2017 on 06.10.2017. 22. This apart, the Assistant Commissioner, by the order dated 13.10.2018, had also ordered for refund of the amount and this order was also not assailed by the Department. 23. Excise Appeal No. 70764 of 2019 filed by the Department is, therefore, liable to be dismissed and the cross objections filed by the appellant are liable to be allowed. 24. Excise Appeal No. 70628 of 2019 has been filed by the appellant for a relief that interest at the rate of 12% should be granted to the appellant from the date of deposit of the amount instead of 6%, as ordered by the Commissioner (Appeals). In this connection, learned counsel for the appellant has placed reliance upon the following decisions: (i) Sandvik Asia Ltd. vs. Commissioner of Income Tax-I, Pune [2006 (196) E.L.T. 257 (S.C.)]. (ii) Pace Marketing Specialities vs. Commissioner of Central Excise [2012 (27) S.T.R. 420 (All.)]. (iii) Ebiz. Com Pvt. Ltd. vs. Commissioner of Central Excise, Customs & S.T. [201....
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....l Government. It provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Excise Act deals with interest on the amount collected in excess of the duty. It provides that where an amount has been collected in excess of the duty from the buyer of such goods, the person who is liable to pay such amount shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty-six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette. 33. There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate of interest has not been prescribed, when revenue deposit is required to be refunded. 34. To be able to have some guidance regarding the rate of interest in case revenue deposit has to be refunded, the aid of the interest provisions under section 11AA (which deals with interest on delayed payment of duty), sec....
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....ment hereby fixes the rate of interest at Fifteen percent per annum for the purpose of the said section. 38. It would also be to pertain to refer to the Notification issued under section 11AB of the Excise Act, as it existed prior to 08.04.2011. It provides interest @18% per annum. The said Notification is reproduced below: "Notification No. 6/2011-C.E. (N.T.), dated 1-3-2011 Notification Under Section 11AB Rate of interest on delayed payment of duty. - In exercise of the powers conferred by section 11AB of the Central Excise Act, 1944 (1 of 1944) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 66/2003-Central Excise (N.T.), dated the 12th September, 2003 [GSR (E), dated the 12th September, 2003], except as respects things done or omitted to be done before such supersession, the Central Government hereby fixes the rate of interest at eighteen percent per annum for the purpose of the said section. This notification shall come into force from the 1st day of April, 2011." 39. In this connection reference can also made to the decisions of the Allahabad High Court in Pace Marketing Specialities and Ebiz. C....