TaxTMI 
TaxTMI 
2022 (2) TMI 551
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....and the said demand was confirmed against the appellant vide Order in Original No. 70/2017 dated 31.03.2017. The appeal against the said order was allowed by Commissioner (Appeals) vide Order No. 107/2019-20 dated 20.01.2020. The appellant thereafter filed the refund claim of the aforesaid amount of Rs. 10,88,180/- on 23.01.2020. The Original Adjudicating Authority vide Order No. 57/2020 dated 29.07.2020 had sanctioned the refund claim of the said amount, however, without any interest. The appellant preferred an appeal before the Commissioner (Appeals) seeking entitled amount of interest also. However, Commissioner (Appeals) has remanded the matter back to the Original Adjudicating Authority directing them to examine the claim of interest on merits and for issuance of speaking order with respect to interest claimed after following the principle of natural justice. Still being aggrieved, the appellant is before this Tribunal. 2. I have heard Shri Anubhav Goel, learned Counsel for the Appellant and Shri Mahesh Bhardwaj, learned Authorised Representative for the Department. 3. It is mentioned on behalf of the appellant, that the Commissioner (Appeals) is not at all competent ....
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....ed Departmental Representative has mentioned that the appellant is entitled for the interest from the date of his application i.e. with effect from 23.01.2020. No objection is endorsed for modifying the impugned order, however to the said extent only. 7. After hearing both the parties and the rival contentions and pursuing the records of the impugned appeal, I opine that the following two issues are to be dealt with for the adjudication of present appeal: 1. Whether the Commissioner (Appeals) was competent to pass the order remanding the appeal to the Original Adjudicating Authority for reconsideration; 2. Whether in the given facts and circumstances the appellant is entitled for the interest on the sanctioned amount of refund from the date of deposit of the said amount. 8. Section 128 A (3) of the Customs Act, 1962 is apparently got amended by Finance Act, 2001. The pre amendment provision reads as follows : " The Commissioner (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating ....
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....ubber Co. P Ltd. (supra) case wherein after applying the MIL decision the matter was sent back to the Commissioner (Appeals) for decision in accordance with the law. 9. In view of the entire above discussion, I decide the first question of adjudication holding that the Commissioner (Appeals) was not at all entitled to, any more be empowered to remand the matter back to the adjudication authority on this score the order under challenge is liable to be set aside, with effect from 11.05.2001. 10. Coming to the second point of adjudication, I observe that the refund claim was filed by the appellant on 23.1.2020. The same has been sanctioned by the Department vide Order dated 29.7.2020. Apparently the refund was sanctioned beyond the period of three months as provided under section 11B of the Central Excise Act, 1944. Section 11BB of the Act provides for interest on delayed refund. It states that if any duty ordered to be refunded under sub-section (2) of section 11B is not refunded within three months from the date of receipt of the application, than the applicant shall be entitled to interest after the expiry of three months from the date of receipt of the application at such ra....
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....unless the operation of the order of the appellate authority is stayed by a superior court 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. 14. 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....
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....on the refund shall be payable @ 12% per annum as held by Hon'ble Kerala High Court in the case of Sony Pictures Networks India Pvt.Ltd.[2017 (353) ELT 179 (Ker.)] wherein it has held as under:- "14. 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 ....