TaxTMI 
TaxTMI 
2023 (2) TMI 774
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....11 (Tri. Del.) (c) Hawkins Cookers Limited vs. CCE, Chandigarh - 2017 (6) GSTL 308 (Tri. Chan.) (d) CCE, Kutch (Gandhidham_ vs. Deep Construction Co. - 2019 (365) ELT 532 (Tri. Ahmd.) (e) Team HR Services Pvt. Limited vs. UOI - 2020 (38) GSTL 457 (Del.) (f) Ashima Limited vs. CCE & ST., Ahmedabad - 2019 (369) ELT 967 (Tri. Ahmd.) (g) CCE, Hyderabad vs. ITC Limited - 2005 (179) ELT 15 (SC) 3. Shri Vijay G Iyengar, learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. I have carefully considered the submissions made by both sides and perused the record. I find that limited issue to be decided is whether the appellant is entitled for interest from the date of deposit of pre-deposit in a case where the Tribunal has finally passed the final order setting aside the demand. I find that on this issue Hon'ble Supreme Court/ High Courts and this Tribunal has taken a view that in case of pre-deposit, interest should be given from the date of deposit. Some of the judgments are as under:- (a) In the case of Riba Textiles Limited (supra) the Hon'ble Punjab & Haryana High....
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....e Income Tax Department for periods ranging up to 17 years without any compensation whatsoever from the Department. Such actions and consequences, in our opinion, seriously affected the administration of justice and the rule of law. COMPENSATION : 46. The word 'Compensation' has been defined in P. Ramanatha Aiyar's Advanced Law Lexicon 3rd Edition 2005 page 918 as follows : "An act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal value for his loss, or be made whole in respect of his injury; the consideration or price of a privilege purchased; something 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 descrip....
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....failing which the Department shall pay the penal interest @ 15% p.a. for the above said period." 9. It is not disputed that the provisions of Income-tax Act, 1961 and Central Excise Act, 1944 are pari materia and, therefore, law laid down by the Supreme Court in the case of Sandvik Asia Ltd. (supra) shall be applicable to the present case. 10. Ld. Counsel for the appellant is not in a position to deny the proposition of law laid down in the case of Sandvik Asia Ltd. (supra) and the applicability thereof to the facts of the present case. 11. Consequently, finding no merit in the present case, the instant appeal is hereby dismissed." (b) In the case of Emmar MGF Construction Pvt. Limited (supra), the Principal Bench of this Tribunal held as under: "2. The Revenue is in appeal against the impugned order-in-appeal whereby the interest @ 6% have been allowed on the amount of deposit, pending litigation, from the date of deposit till the date of actual refund. 3. Brief facts of the case are that show cause notice dated 26-12-2008 was issued alleging non-payment of service tax on registration fees/transfer charges amounting to Rs. 1,18....
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....hile Section 35FF (as substituted by way of amendment w.e.f. 6-8-2014), interest is payable on filing of refund claim, if not granted within three months from the date of receipt of the appellate order. As the show cause notice was issued to the assessee prior to 6-8-2014, the erstwhile Section 35FF will be applicable. It is further urged that the amount deposited in the year 2015 is not by way of pre-deposit, as defined in Section 35F of the Act. Reliance is placed on the ruling of Hon'ble Gujarat High Court in the case of Ajni Interiors v. UoI, wherein it has been held that if any payment is made as a pre-condition for exercising the statutory right, it can be termed as pre-deposit. However, it cannot be equated with voluntary deposit of Excise duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. Further, reliance is placed on the finding of the Adjudicating Authority. 7. Opposing the appeal, Learned Counsel Shri Puneet Agrawal urges that the issue is not longer res integra as the Division Bench of this Tribunal in Parle Agro (P) Ltd. v. Commissioner, CGST - 2021-TIOL-306-CESTAT-ALL, following ....
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....ch has been certified that the amount of pre-deposit is required to be refunded within three months of the order passed by the Appellate Court/Court or other Final Authority, by a superior Court and there is no requirement to file refund application. Admittedly there is no stay of the order dated 11-12-1996 passed by the Hon'ble Apex Court. In terms of the C.B.E. & C. Circular, dated 8-12-2004, the assessee is not required to file any application for refund. In these terms the issue no. 1 is answered in favour of the assessee. 10. I have gone through the Issue No. 2, Whether the amount paid by the assessee under Section 35N of the Act is a pre-deposit under Section 35F of the Central Excise Act or not? The said issue came up before the Hon'ble High Court of Gujarat in the case of Ghaziabad Ship Breakers Ltd. (surpa) wherein the Hon'ble High Court observed as under : 8. Another aspect of the matter is that under Section 129E of the Act in case of any appeal under the chapter, the person desirous of appealing against an order relating to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any pena....
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....assessee file rebate claim of duty paid on the export of the goods and the Hon'ble Apex Court held that the interest is payable to refund after three months of the date of the application. In the said case, it was not the issue before the Hon'ble Apex Court whether in pursuant to the order passed by the Appellate Court, the assessee required to file application for refund claim or not, therefore, the facts of the said case are not applicable to the facts of this case and the assessee is not required to file any application for refund claim. Admittedly, the C.B.E. & C. Circular clarifies that the refund claim is to be sanctioned within 3 months from the date of order of the Appellate Court, therefore, any delay in refund the assessee is entitled for interest after 3 months of the order. The same view has been taken by the Hon'ble High Court of Calcutta in the case of Madura Coats Ltd. (supra) wherein the Hon'ble High Court observed as under : 19. The decision of the Supreme Court in the case of the Commissioner of Central Excise v. ITC Limited (supra) as regards refund of amount deposited under Section 35F was governing the field as the Supreme Court has upheld the directio....
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....o months on the date of this order. 14. Further, I find that it has been objected by the Revenue that provisions of [Section] 35F are not applicable to the facts of this case. This issue has been considered by the Hon'ble High Court in the case of Madura Coats Ltd. (supra) and held that although the provisions of [Section] 35FF of the Act are not in the statute book during the relevant time but the same are applicable for interest for delayed refund. The said order of the Hon'ble High Court has been affirmed by the Hon'ble Apex Court. 15. In these terms, I hold that the assessee is entitled for interest after three months from the date of 11-12-1996 till the amount of refund is realised in terms of the decision of the Hon'ble High Court in the case of Madura Coats Ltd. (supra). 16. With these terms the appeal filed by the assessee is allowed with consequential relief and appeal filed by the Revenue is dismissed." (d) In the case of Team HR Services Pvt. Limited, identical issue of payment of interest of refund of deposit made during investigation, the Hon'ble Delhi High Court passed the following order: "17. We are unable to find any jus....