TaxTMI 
TaxTMI 
2022 (1) TMI 58
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....o. A/60015/2020-SM(BR) dated 07.01.2020 the following mistakes apparent on record are noticed: 1) The Hon'ble CESTAT while deciding the instant matter has wrongly relied upon the case of M/s. Sandvik Asia Ltd. vs. CIT Pune-2007 (8) STR 193 (SC) as in this case the Apex Court was dealing with section 214 and 244(1A) of the Income tax Act 1961 as can be seen from para 4 and para 45 of the said judgment. The Supreme Court has allowed interest from the date of deposit as the sections in question allow the same. The relevant section is reproduced: Section 244(1A) referred to in sub-section (1) is due to the assessee, as a result of any amount having been paid by him after the 31st Day of March, 1975, in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appear or other proceeding under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on ....
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....urt in case of M/s. Nino Chaks vs. Commissioner of Customs 2019 (9) TMI 1166 which covers the issue squarely mentioning that interest on amount deposited voluntarily or under coercion during investigation from the date of deposit cannot be granted as there is no provision. However, Delhi High Court allowed interest @6% p.a. from the expiry of 3 months of the CESTAT order. 5) The case of UCAL Fuel Systems Pvt. Ltd.2014 (306) ELT 26 has been wrongly relied upon by the Hon'ble CESTAT. The Apex Court in the case of M/s. Kay Pan Fragrance Pvt. Ltd. 2019 (12) TMI 95 SC has held that orders passed by the High Courts which are contrary to the stated provision of the Act shall not be given effect to by the authorities. Therefore, the decision of Single bench court of Madras HC cannot be relied upon. 6) Further, in the case of M/s. Creative industries Pvt.Ltd.2017 (6) TMI 745, it has been held that granting of interest based on equity is beyond the powers of tribunal. Apex Court has also issued clarification in the case of Gujrat Fluora Chemicals 2017 (51) STR 236 (SC) wherein the SC has stated as reproduced hereunder: "8. Further, it is brought to our notice that ....
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.... and prayed that the final order dated 7.1.2020 be rectified. 3. During argument, ld.AR also relied upon the decision of Hon'ble Supreme Court in the case of Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd.2008 (230) ELT 385 (SC) and submitted that even there is mistake of law which however should be apparent on the face of record which does not need long drawn process of reasoning and can be subject matter of rectification of mistake. 4. It is his submission that the case law of Sandvik Asia (supra) was not applicable to the facts this case and the ratio of the decision in the case of Sony Pictures Network India Pvt.Ltd.-2017 (353) ELT 100079 (kar.) and Ghaziabad Ship Breakers Ltd.-2010 (260) ELT 274 (Tri.-Ahmd.) have not been applied correctly. The order dated 7.1.2020 is to be rectified. 5. Heard Ld.AR and gone through the records placed before me. 6. This Tribunal has passed order allowing the decision in the case of Marshal Foundry (supra) passed by this Tribunal on 28.11.2019, the Ld.AR has not brought on record whether the said order has attained finality or not? 7. Moreover, the ld. A. R. heavily relied on the decision of....
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....f ROM application filed by the Revenue. 12. Ld. AR submitted that while filing appeal before this Tribunal in 2018, the Commissioner of Central Excise, Panchkula was named as the respondent in appeal. The appellant fell under the jurisdiction of Commissioner CGST, Rohtak w.e.f. 01.07.2017. As DC, Panipat is not the proper officer having jurisdiction over the appellant from 01.07.2017 which is under the control of CGST Commissionerate Rohtak instead of CGST Commissioner, Panchkula. As from 1.7.2017, the appellant actually fall in the administrative control of CGST, Rohtak., the final order passed by this Tribunal on 7.1.2020 was received by the Commissioner of CGST, Panchkula as respondent. Consequent to the passing of order by this Tribunal, the appellant filed refund on 26.6.2020 with the DC, Division, Panipat who examined the refund application of the appellant and formed view prima facie that it appeared the appellant is outside jurisdiction of office with DC, Division, Panipat, therefore, requested them that the CGST, Rohtak is having control where the unit is located and certificate issued in the CGST regime, therefore DC division, Panipat is not the proper officer for sanc....
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....ere handed by CGST, Panchkula. The appellant applied for de-bonding of the factory in 2010, the appellant requested vide letter dated 18.3.2011 in writing that jurisdiction be with remain CE Range Panipat, the Commissioner, Rohtak vide letter dated 13.07.2012 allowed the appellant to remain under the jurisdiction DC Range Panipat instead of DC Range Sonipat. Thereafter, all proceeding were handing over by Panchkula. (b) It is his submission in another matter of the appellant applied a refund claim consequent to the order dated 10.1.2019 passed by this Tribunal before Divisional Officer o/o the Assistant Commissioner, Central Excise, CGST, Panipat, the Assistant Commissioner has denied the refund which was rejected by the Commissioner (Appeal) Panchkula vide order dated 8.7.2020. Being aggrieved the appellant filed appeal before this Tribunal which still pending. All the above proceeding were concluded after 1.7.2017 and Panchkula Commissionerate dealt with the matter which clearly show that The CGST, Panchkula is having the jurisdiction over the appellant. (c) He further submits that the Government clarified that with effect from 1.7.2017, the jurisdiction under s....
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....rovisions of the existing law: Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. (6) (a) every proceeding of appeal, review or reference relating to a claim for CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 and the amount rejected, if any, shall not be admissible as input tax credit under this Act: Provided that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act;" 21. The said provisions clearly....