2023 (4) TMI 504

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....ability of referral services rendered by the appellant and the department was of the view that the services provided by the appellant to Canadian banks and foreign universities/colleges does not amount to export of services as the provision of the services is the location of the service provider i.e., India. The appellant were issued three show cause notices, show cause notice -I dated 20.10.2014 (April 2009 to March 2014), show cause notice-II dated 20.04.2019 (April 2015 to March 2016), show cause notice-III dated 22.04.2019 (April 2016 to June 2017) and when these show cause notices were pending for adjudication, the appellant in order to safeguard themselves from the charge of interest and penalty as well as to buy mental peace, deposited the amount under protest totalling to Rs. 25,39,804/-. The amount was paid in four tranches starting from July 2014 (before issuance of the first show cause notice) when the investigations were going on against the appellant and last payment in April 2015. The said amount was paid under protest as the dispute was going on between the appellant and the department. Thereafter, with regard to show cause notice -I dated 20.10.2014, the demand prop....

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.... huge liability of interest and penalty, when the investigation and dispute was going on for the prior period and the subsequent period. He further submitted that this Tribunal itself recorded the facts while passing order dated 14.06.2021 that the dispute was going on between the appellant and the revenue when the service tax was paid for the period 2014-2015. He further submitted that the impugned refund claim was sanctioned by accepting the facts that it was paid under protest and it was held that the impugned refund claim is not time barred. He also submitted that the Ld. Commissioner (Appeals) has erroneously concluded that the date of filing of refund application would be considered from the filing of the bank details by the appellant whereas the fact of the matter is that the bank details were already there with the department because the department sanctioned the refund claim for the prior period to the appellant. He further submitted that since the appellant has paid the amount when the investigation and proceedings were going on and moreover no show cause notice for the period in dispute i.e. 2014-2015 was issued to the appellant. He also submitted that the amount deposit....

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.... by the appellant. He further submitted that the Tribunal‟s order dated 14.06.2021 allowing the refund of the appellant does not talk about the payment made under protest. He further submitted that the service tax was paid to safeguard themselves from the charge of interest and penalty as well as to buy mental peace and thus it cannot be equated with payment made under protest. He further submits that even if the amount is paid under protest still it would be processed under Section 11B only. Lastly with regard to rate at which interest is to be paid, he submits that the interest should be granted to the appellant at the rate of 6% and not 12% under Section 11BB. In support of his submissions, the Ld. DR relied upon the following decisions:- • Veer Overseas Ltd. Vs. Commissioner of Central Excise, Panchkula 2018 (15) G.S.T.L. 59 (Tri. Lb) • M/s Shree Balaji Warehouse & Ors. Vs. CGST Panchkula 2022 (2) TMI 900-CESTAT Chandigarh • The State of Uttar Pradesh & Ors. Vs. M/s Kay Pan Fragrance Pvt. Ltd. 2019 (12) TMI 95 SC • Larsen & Toubro Ltd. vs. CCE Indore, Division Bench of CESTAT New Delhi 2013 (295) ELT 572 (Tri. Del.) ....

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....sion of the Ahmadabad Tribunal and thereafter granted the interest at the rate of 12% per annum. Here, It is pertinent to mention Para 19, 20 and 21 of the said judgment which are reproduced below:- 19. Further, the interest 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. E....

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....nces, the amount deposited by the appellant is to be treated as pre-deposit since the matter had not attained finality during the relevant period. Therefore, refund is to be treated as refund of pre-deposit made when the appeal was pending. There is no dispute that the amounts deposited is duty but this is not the issue which has been taken into account while precedent decisions have allowed the interest at 12% on the refunds claimed in respect of pre deposit. I find that in the decisions cited by the learned advocate, interest at 12% has been allowed. Therefore, following the judicial discipline, I consider it appropriate that interest in this case also is to be allowed @ 12%. Accordingly, original adjudicating authority is directed to workout the differential interest amount and make the payment to the appellants." 21. As the provisions of section 243 Income Tax Act, 1961 and section 35FF of Central Excise Act, 1944, are pari-materia. Therefore, following the decision of Hon‟ble Apex Court in the case of Sandvik Asia Ltd. (supra) and Sony Pictures Networks India Pvt.Ltd. (supra) I hold that the appellants are entitled to claim interest from the date of payment of i....