TaxTMI 
TaxTMI 
2023 (5) TMI 333
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....2020 25.08.2020 Assessee Incorrectly denies the interest for the period 2002 to November 2010 E/85290/2021 25.08.2020 Revenue Incorrectly granted interest for the interest for the period 30.11.2010 to October 2017 2.1 On the issues under challenge in the four appeals the observations made in the impugned order are reproduced below: Order in Appeal No SK/115/LTU/MUM/2016-17 dated 28.03.2017 The details are as given below: Particulars Amount in Rs (a) Amount Originally claimed as Refund 5,53,97,108 (b) Less: Amount disallowed on the ground of unjust enrichment 1,17,93,761 (c) Less: Amount disallowed on the ground of unjust enrichment 38,19,911 (d) Less: Refund in respect of Universal Stainer disallowed for payment of duty 16,08,942 (e) Less: Adjustment of refund already sanctioned to the appellants (includes Rs.38,19,911 in (c) above) 45,22,894 (f) Balance Refund Claim admissible 3,36,51,600 The Commissioner (Appeals), Large Taxpayer Unit, Mumbai vide Order-in-Appeal dated 30.1.2012 upheld the Order-in-Original dated 6.2.2009 and rejected the appeal filed by the appellant. Being aggrieved the appellant filed an appeal before Hon'ble Cestat and i....
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....as become final (ii) The Commr (A)'s OIA dated 31.12.2001 was subsequently relied upon in the Commr (A) OIA dated 30.9.2002 (in r/o 1st period) which attained finality by the Hon'ble High Court Order dated 21.2.2006. Finality of the OIA dated 31.12.2001 has thus been reinforced. (iii) Pursuant to the OIA dated 31.12.2001, the appellant had vide their letter dated 29.7.2002 addressed to the Superintendent for quantification of the differential duty/refund. It is reproduced as under "However, as was done consequent to the Assistant Commissioner's orders of September 1997, we request you to calculate the differential duty on final assessment and allow us to take the credit of excess duty paid in terms of Order- in-Appeal dated 7.1.2002 passed by the Hon'ble Commissioner(Appeals)." (iv) Based on above order of the Commr(A) and the Asstt. Commr. Order dated 11.9.1997 ordering for finalizing the provisional assessment, the assessing officer i.e. Superintendent, the proper officer for assessment (or any senior officer), has not passed any assessment order to finalise the provisional assessment to quantify the demand or refund of duty despite the appellant's....
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....ar from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person:" the limitation of one year shall not apply where any duty has been paid under protest. 14. Even otherwise that for provisional assessment was finalised during year 2001, the refund cannot be denied as the duty was paid under protest. The fact of duty payment by protest is not disputed. I thus find that the appellant had paid duty under protest hence the limitation of one year shall not apply. Hence I find the rejection of refund claim on the ground of limitation is incorrect as the Hon'ble High Court Order dated 21.2.2006 attaining finality, the appellant had filed the refund application dated 14.11.2006 correctly and it cannot be rejected as time barred. In t....
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....y has not been passed on to third party - No civil suit for refund of duty maintainable - Writ jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 unaffected by said Section 118 or Section 27 but writ court to have due regard to the provisions of Central Excise and Customs Act and to refuse grant of relief in automatic refund and claimant to prove burden of duty not passed on to third party." In the impugned order there is mention of the appellant's contention on the basis of the above CA certificate as well as that this amount was deposited much later on and in one go. The order also mentioned about appellant's narration of this certificate vis-a vis their profit and loss account but there is no discussions on the unjust enrichment. The refund was rejected on time bar aspect. The order is silent on this. As this amount was deposited much later on in one go and there is certification of C.A. certificate. I have no hesitation to hold that the same is not hit by unjust enrichment. Order in Appeal No MKK/423/RGD APPL/2018 dated 16.01.2019 "5.4 In accordance the above position of law, I find that appellant is entitled to interest on dela....
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....having all the relevant documents and also since department concluded refundable amount on 30.11.2010. This goes in line with the decision of the Commissioner (Appeals) OIA No. MKK/423/RGD APP/ 2018 dated 16.01.2019 and the judgment of Hon'ble Tribunal in case of M/s Malwa Cotton Spinning Mills Ltd. Vs CCE, Ludhiana, as reported in 2013 (2) ECS (86) (Tri - Del). 10. I find that adjudicating authority vide impugned order decided that interest is admissible from 30.10.2017 because application with all required documents for processing of fresh refund claim was filed by the assesee on 31.07.2017 as mentioned in the OIO No. 58/Ref/Gy/2017-18 dated 27.07.2018. However, I have seen the letter dated 31.07.2017 of the appellant addressed to the department and I find that this letter only requests department to remit the refund amount alongwith interest, consequent to the Commissioner (A)'s OIA No. SK/115/LTU/MUM/2016-17 dated 28.03.2017. Further, I find that at para 8 of the OIO No. 58/Ref/Gy/2017-18 dated 27.07.2018, it is mentioned that "as per directions of Commissioner (A) [i.e O1A No. SK/115/LTU/MUM/2016-17 dated 28.03.2017] the assesse filed the refund claim on 31.07.2017.....
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.... APPL/2018 dated 16.01.2019 and having mindfully determined the date of commencement of interest on 29.10.2017, I hereby sanction interest amounting to Rs 14,94,899/- (Rs Fourteen Lakhs Ninety Four Thousand Eight Hundred and Ninety Nine Only) to M/s Asian Paints Limited situated at Asian Paints House, 6A Shanti Nagar, Santacruz (E), Mumbai 400055." 2.5 This order was challenged by the appellant assessee before the Commissioner (Appeals). The appeal was disposed off by the Commissioner (Appeals) vide impugned order dated 25.08.2020 which is subject matter of the third and fourth appeal in table in para 1 above, one filed by the revenue and other by the appellant assessee. 3.1 We have heard Shri Gajendra Jain along with Shri Rajesh Ostwal, Advocates for the appellant assessee and Shri Amrendra Kumar Jha, Deputy Commissioner, Authorized representative for the revenue. 3.2 Arguing for the appellant learned counsel submits: Commissioner appeal has in the order dated 28.03.2017 has given specific finding that the duty was paid under protest and therefore the time limit provided under section 11B will not apply in the present case. There is no counter to the said finding of the orde....
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....pplication, initially rejected by the Assistant Commissioner, but later on allowed by the appellate authority. Reliance is placed on the following decisions: Ranbaxy Laboratories [2012 (27) STR 193 (SC)] Hamdard wakf Laboratories [2005 (188) ELT 476 (ALL)] affirmed at [2017 (51) STR 214 (SC) IVRCL Infrastructures & Projects Ltd. [2010 (257) ELT 33 (Bom)] Reliance Industries Ltd. [2015 (317) ELT 621 (T)] Once the taxing statue contains the provision relating to interest then payment of interest is automatic to the extent provided in statue. Kanhai ram Thekedar [2005 (185) ELT 3 (SC)] Qureshi Crucible Centre [1993 Supp (3) SCC 495] All the necessary documents were available with the department in 2002 itself. Revenue had challenged the order of finalization of assessment on merits and not for the reason of non submission of documents. No provision in Section 11BB corresponding to Explanation to section 244 A (2) and 243 (1) of Income Tax Act, 1961 or Section 44A of the Bombay sales Tax Act, 1959. No counter has been made to finding of fact recorded by the Commissioner (Appeals) that all the documents were submitted by the appellant assessee and verified ....
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....the excess duty paid by us during the relevant period should be refunded by the department along with the interest calculated from the date of payment of duty till the date of refund to be made by the department. 2.2 The said claim was rejected by the Asstt. Commr. C.Ex. vide 48/R/08-09 dated 6.2.2009 on the grounds of limitation, unjust enrichment and non availability of documents. 2.3 The appellant then filed an Appeal No. 49/09/P against the above O-in-O with the Commr(A). The Commr(A) directed LTU for re-verification of entire refund claim from 1978 to 1997. The same was submitted by the Addl. Commr, LTU, Mumbai vide letter dated 30.11.2010 arriving at Rs. 3,36,51,000/- as the new refundable amount. 2.4 The Commr(A), LTU, Mumbai vide O-in-A dated 30.1.2012 upheld the O-in-O dated 6.2.2009 and reject the appeal filed by the appellant on the grounds of not filing of proper documents, hit by doctrine or unjust enrichment and by the limitation clause. The appellant then filed appeal with the Cestat Mumbai. 2.5 The Cestat, Mumbai vide Order No. A/115 /15/EB dated 16.1.2015, has allowed the appellant's appeal by way of remand. The order part is quoted as given below: ....
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....11B of the Central Excise Act, 1944. 3.4 that aforesaid contention raised in the impugned Order 21.10.2015 is incorrect & perverse. They have deposited excess duty pursuant to the orders passed in course of finalization of provisional assessment by various authorities. When the finalization had attained legal conclusion, the appellant filed a reminder to intimate the department for refund of the excess excise duty which has been paid by them, as a matter of consequential relief. 3.5 that treating the reminder letter dated 14.11.2006 as independent refund claim under Section 11B of the Central Excise Act, 1944 and applying time limit of one year, is incorrect & perverse. Vide their letter dated 14.11.2006, they have claimed consequential relief pursuant to finalization proceedings coming to an end. There is no need for filing any formal refund claim. The finalization proceedings come to end only when effect/ adjustment is undertaken in terms of the appellate orders passed by higher authorities. In the present case, the adjustment or order giving effect to appellate orders has not been passed. Hence, there is no claim in law in terms of Section 11B. The adjudicating authority h....
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....1944. 3.11 that even if the reminder application submitted by them for refund of the excess duty paid them is considered as refund claim in terms of Section 11B of the Central Excise Act, 1944, even then entire refund of the excess duty paid by them is admissible to them in view of the following submission. i) As per the impugned Order dated 21.10.2015, the refund application dated 14.11.2006 filed by them with respect to refund of the duty paid by them in third period, i.e., from July 1988 to August 1997 is time barred. The adjudicating authority held that since the issue with respect to the aforesaid period has attained finality by the Order-in- Appeal dated 31.12.2001 (issued on 7.1.2002), therefore refund claim filed on 14.11.2006 cannot be considered at refund claim filed within statutory time limit of one year prescribed under Section 11B of the Central Excise Act, 1944. Accordingly, the adjudicating authority rejected the refund application as time barred. The contention of the adjudicating authority is incorrect & not sustainable under law. ii) The position as to allowance and disallowance of deduction of various discounts/deduction given by them for the 3rd period....
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....the department is under the obligation to pass fresh Finalisation Order giving effect to the Order-in-Appeal. In the absence of such denovo finalization, the assessment continues to be the provisional assessment. It is settled law that provisional assessment is provisional for all respect and therefore the time limit cannot start unless the assessment is finalized by the department. vi) In view of the above, the refund amount due to them for the 3rd period attained finality by the Bombay High Court's Order dated 21.2.2006. In view of the aforesaid factual position, even if the appellants had filed the refund claim immediately before the decision of appellate authorities, the department would not have processed the refund claim in view of their pending appeal. vii) Pursuant to the above Commissioner (Appeals) O-in- A dated 31.12.2001 they vide their application dated 29.7.2002 asked the department to quantify the differential duty/refund. However, the department did not give any formal reply to the said letter. This was despite being this application was filed within the stipulated period of one year of filing refund claim under Section 11B of the Central Excise Act, 1944.....
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.... the relevant date. However, as per second proviso to Section 11B(1), the limitation of one year shall not apply where any duty and interest has been paid under protest. In such cases, where the duty is paid under protest, the period of limitation is to be reckoned from the date of Order consequence to which the amount become refundable. In view of the above, the refund claim in the present case became refundable consequence to the Bombay High Court's Order dated 21.2.2006. They had filed refund claim within one year from the said Bombay High Court's Order dated 21.2.2006. Therefore, the rejection of refund claim on the ground of limitation is incorrect. 3.12 that they placed reliance on the decision of Three Member Bench of Cestat in the case of CCE Vs. Ashok Leyland (1987 (29) ELT 530 (T)]. In this case, (i) all the clearances of the assessee were assessed on the price charged by the main dealers to sub-dealers on the ground that the main dealers are related persons. The assessee filed a writ petition before the High Court of Madras and sought the writ of certiorari contesting that the main dealers are not related persons. A learned Single Judge of the Madras Hig....
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....ovisional assessments. The Commissioner (Appeals) decided the appeals of the assessee and the department. Against the order of the Commissioner (Appeals) the department filed appeal before the f finalization of provisional assessment would attain finality only when the appeal filed by the department was disposed of by High Court vide Order dated 21.2.2006. Therefore, the limitation period for filing of refund claim would start from the date of High Court's Order dated 21.2.2006. Therefore, the rejection of refund claim on the ground of limitation is incorrect. 3.15 that in the present case, prior to High Court's Order dated 21.2.2006, there was no reason for them to presume that the refund is admissible to them consequence to the Commissioner (Appeals)'s Orders dated 31.12.2001. It is because the operation of Commissioner (Appeals)'s Orders dated 31.12.2001 was subject to the decree/order of the High Court. 3.16 that therefore, the cause for applying for refund would arise only after the department's appeal was rejected by the High Court vide Order dated 21.2.2006. Limitation will arise only after such a final determination of refund claim by High Court....
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....Appeal dated 7.1.2002, hence, refund claim filed for the same on 14.11.2006 is time barred. The adjudicating authority has also placed reliance on decision of Dena Snuff (Petitioner) Ltd. Vs. CCE-2003 (157) ELT 500 (SC). 3.20 that in view of the detailed submission above, they have correctly filed the refund claim subsequent to the Hon'ble High Court order dated 21.2.2006. Therefore, aforesaid finding of the adjudicating authority is incorrect & perverse. 3.21 that reliance placed on the aforesaid decision of the adjudicating authority is also incorrect. The decision of the Supreme Court in Dena Snuff supra is in fact in favour of theirs. In this case, (i) the assessee classified its product under Sub- Heading 2404.60 of the Central Excise Act and paid duty on that basis till 27.7.1990. However, from 25.8.1990 onwards, on insistence of the department the assessee classified its product under Sub- Heading 2404.50 and paid higher rate of duty under protest. The classification list was approved in 1994 on the basis that the assessee's product was classifiable under Sub-Heading 2404.50. The assessee challenged the classification list. The appeal of the assessee was all....
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....ng refund claim, the assessee raised two issues: a. The first is that the Tribunal had misconstrued paragraph 108(iv) of the decision of this Court in Mafatlal Industries (supra) and that paragraph did not in any way preclude an application for refund being made in respect of duties paid under protest. b. The second submission is that in any event this Court in Sinkhại Synthetics & Chemicals Vs. CCE- 2002 (9) SCC 416 has held that Sections 11A and 11B did not apply to duty paid under protest. (vii) In respect of the aforesaid questions, the Supreme Court held as under: a. as far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries' case was correct. The "cause of action" of the assessee would arise only after the final dispute regarding the classification list had been settled by this Court on 28.8.2003 reported as 2004 (163) ELT AI 15 (SC). The application for refund by the assessee was therefore premature. b. In case of second submission of the assessee, the Supreme Court held-that we have noted the proviso to sub-section (1) of Section 11(B) which says that the peri....
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....ns: (i) that letter is part of the series of correspondence that they had with department with respect to quantification of demand consequent to Order-in- Appeal dated 31.12.2001; (ii) that they had not submitted any working data as undertaken by them in the letter dated 29.7.2002; (iii) that no reference of the aforesaid letter dated 29.7.2002 was made in the impugned refund claim dated 14.11.2006; (iv) that in refund claim dated 14.11.2006 the appellants have specifically declared that 'no refund on this account has been claimed by us earlier'; & (v) that letter dated 29.7.2002 was not in pre-scribed format & it was not filed with proper authority & therefore it cannot be treated as refund claim under Section 11B of the Central Excise Act, 1944. 3.25 that all the aforesaid findings/observation given by the adjudicating authority is incorrect & not sustainable under law. Out of the refund amount of Rs.4,90,96,420/- claimed for third period, they admit that the provisions of unjust enrichment would apply to refund of Rs.1,17,93,761/- as explained in Additional Commissioner, LTU's Verification Report dated 30.11.2010. Therefore, the appellants is not pr....
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.... given in the impugned Order-in- Original dated 21.10.2015 are not correct. 3.30 that even otherwise, the refund claim filed vide letter dated 29.7.2002 cannot be rejected on the ground that the refund claim was not filed in the appropriate format. If the refund claim has been insisted to be filed in some appropriate format, their refund claim vide letter dated 29.7.2002 should be treated as defective refund application and further claim for refund filed on 14.11.2006 is merely supporting their claim made vide letter 29.7.2002. They have not enhanced their claim for refund in refund claim filed on 14.11.2006. It is settled law that refund claim cannot be rejected on the ground that refund application was not filed in prescribed format in this they relied on few case laws. 3.31 that similarly, the finding of the adjudicating authority that the letter was not addressed to appropriate authority & therefore, it cannot be considered as refund claim is also not sustainable under law. The refund claim cannot be rejected for the procedural requirement. Further, the aforesaid objection that refund claim should be addressed to appropriate authority was never raised by the department wh....
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.... by them vide the letter dated 29.07.2002, by the original authority, the arguments made against such rejection did not find any favourable finding from the Commissioner (Appeal). This order is under challenge by the Revenue in appeal No E/86570/2017. Apparently Appellant Assessee has not filed any appeal against this order challenging any part of the order, or cross objections in the matter. Hence the findings recorded by the Commissioner (Appeals) in para 14 of the impugned order in this appeal as far as it relates to appellant assessee attains finality. 4.4 We also do not find any merits in the appeal filed by the revenue challenging the finding recorded to the effect that the refund claim filed by the appellant assessee on 14.11.2006, is not barred by limitation. Hon'ble Apex Court has in case of Mafatlal industries [1997 (89) ELT 247 (SC)] wherein in para 95, in similar circumstances has held as follows: "95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed....
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....has in case of Bhilosa Industries Pvt Ltd [2022-TIOL-530-CESTAT-AHM] observed as follows: "6. We have carefully considered the submissions made by both the sides and perused the records, we find that the limited issue involved is that from which date the appellant is entitled for interest on the sanctioned refund. As per the facts of the present case, we find that there is no dispute about the fact that the refund claim had been filed on 19.05.2005 and the same was sanctioned only vide order-in-original both dated 04.04.2016. We also noticed that in the present matter both the adjudicating authority considered the letter dated 23.11.2015 as refund claim application, whereas vide letter dated 23.11.2015 appellant only informed the Jurisdictional Deputy Commissioner that CESTAT has passed order in their favour and accordingly to sanction the refund amount along with interest. 7. The Section 11BB deals with interest on delayed refunds which reads as under :- "11BB. Interest on delayed refunds. - If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (....
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....ant is entitled for the statutory interest from 20-8-2005 to the date when the refund was eventually paid, i.e., 04-4-2016. Though, the refund amount was paid to the Appellant consequent upon the final order dated 08.05.2015 passed by the CESTAT, but the date of computation of the interest amount will commence from the date of cessation of three months of the original refund application, and not from the date, when the refund amount was finally paid. 9. We also observed that the issue in the present case regarding payment of interest on delayed refund amount is no more res integra in view of the judgment of Hon'ble Supreme Court delivered in the case of M/s. Ranbaxy Laboratories Ltd. Union of India, reported in 2011 (273) E.L.T. 3 (S.C.). The relevant paragraph of the said judgment is extracted herein below:- "9..... Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the A....