TaxTMI 
TaxTMI 
2023 (12) TMI 371
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....s proposing recovery of short levy of duty amounting to Rs. 23,85,67,946/- along with the interest and penalty and confiscation of excess TMT seized and confiscation of Indian currency of Rs.6,30,000/-, Rs.60,00,000/- and Rs.23,00,000/- as were seized from the various premises during the searches, respectively. Penalties were proposed to be imposed upon the remaining appellants. 1.2 During the investigation, Appellant No. 1 deposited Rs.13,50,000/- in their RG-23A on 15.09.2010 and also deposited cash amounting to Rs.2,00,00,000/- on 29.11.2010. The said amount totalling to Rs.2,13,50,500/- was proposed to be appropriated against the aforesaid demand. The said proposal was confirmed vide Order-in-Original No. 80-81/2012 dated 31.12.2012. The order was appealed before this Tribunal. Vide the Stay Order no. 59296-59309/2013 dated 23.09.2013, directions to deposit Rs. 4 crores in addition to the amount already deposited was given. However, the Tribunal did not consider any merit about the currency seized totaling to Rs. 89 lakhs. Resultantly, a writ petition was filed before Hon'ble High Court of Rajasthan. Vide the order ....
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....nder challenge. The Commissioner (Appeals) though has held that it is not the case of unjust enrichment, still has upheld the Order-in-Original on the aspect of interest. It is submitted that Revenue has withheld the pre deposit amount of Rs.6,13,80,500/- (Rs.5,24,50,000 + Rs.60,00,000 + Rs.6,30,000 + Rs.23,00,000) without any authority of law as the demand in question has been set aside by this Tribunal vide their order dated 20.10.2017. It is impressed upon that since the appellants remained deprived of the money which remained with the department for a long period, hence the appellant need to be compensated. The interest should have been paid suo moto by the department. 3.1 Learned counsel has impressed upon that the amount in question was in the nature of pre deposit, hence the time bar of Section 11B has wrongly been invoked by Commissioner (Appeals). It is impressed upon that as per department's own circular dated 08.12.2004, the amount which is treated as pre deposit is liable to be refunded along with the interest at the rate of 12%. The Commissioner (Appeals) is alleged to have ignored the relevant decision of the superior....
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....ail order (Rs.2 Crore). Learned DR has relied upon the following decisions: (i) HEG Ltd. Vs. Commissioner, CGST, Final Order No. 51187/2022 dated 15.12.2022, CESTAT NEW DELHI (ii) Sky Airways Vs. Commissioner, CGST, Final Order No. 51187/2022 dated 15.12.2022, CESTAT NEW DELHI (iii) Sun Pharmaceuticals Industries Ltd. Vs. Commissioner of C.Ex., Chennai, reported as 2005 (185) E.L.T. 253 (Tri.-LB) (iv) Commissioner of Central Excise, Hyderabad Vs. I.T.C. Ltd., reported as 2005 (179) E.L.T. 15 (S.C.) (v) Union of India Vs. Tata SSL Ltd., reported as 2007 (218) E.L.T 493 (S.C.) (vi) Commissioner of Income Tax, Gujarat Vs. Gujarat Fluoro Chemicals, reported as 2017 (51) S.T.R. 236 (S.C.) Impressing upon no infirmity in the order, the appeal is prayed to be dismissed. 5. Having heard the rival contentions and perusing the entire records, we observe and hold as follows: 5.1 The order of Commissioner (Appeals) has been challenged on the ground that the appellants were entitled to be paid interest at the rate of 12% per annum on the total amount of the refund from the date of its deposit till the date of....
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....ion among the above, facts and circumstances of the present case are observed to be as follows: Sl. No. Title of the appeal M/s Raghuveer Metal Industries Vs. CCE, Jaipur Rajkumar Pokharna Vs. CCE, Jaipur - I Sunil Kumar Pokharna Vs. CCE, Jaipur - I Rajasthan Commercial House Vs CCE, Jaipur 1. Appeal Number/s E/50138/2020 E/50139/2020 E/50140/2020 E/50141/2020 2. Refund Application 21.12.2017 3. OIO 13.02.2018 4. OIA (Refund) 15.10.2019 5. Amount deposited Rs. 5,24,50,000/- Rs. 60,00,000/- Cash seized Rs. 6,30,000/- Cash seized Rs. 23,00,000/- Cash seized 6. Date of payment of these amounts 29.11.2011 2,00,00,000/- 14.09.2010 14.09.2010 17.09.2010 30.01.2014 3,11,00,000/- pursuant to bail order 15.09.2010 13,50,500/- During investigation from CENVAT A/c 7. Tribunal Final Order entitling....
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....er has attained finality. 31. Section 11D of the Excise Act deals with duties of excise collected from the buyer to be deposited with Central Government. It provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 32. Section 11DD of the Excise Act deals with interest on the amount collected in excess of the duty. It provides that where an amount has been collected in excess of the duty from the buyer of such goods, the person who is liable to pay such amount shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette. 33. There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate interest has not been prescribed, when revenue deposit is required to be refunded." The Tribunal in the said case had allowed the interest....
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.... are quoted in this decision. "5. Refund of pre-deposit: 5.1 Where the appeal is decided in favour of the party / assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre- deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 5.3 If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable....
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.... interest accrued on the amount in question during the period it was in fixed deposit is the property of the owner of the amount i.e. the appellant herein. We draw our support from the decision of Hon'ble High Court of Allahabad in the case of RHL Profiles Ltd. Vs. Commissioner of Customs, Ex. and Service Tax, Kanpur reported as 2017 (352) ELT 349 (All) has held that once the confiscation has been set aside, confiscation of seized currency has been set aside and the fact is that the Department has earned interest during the period the currency was retained by it, it was held that payment of interest could not be denied merely for the reason that there is no express statutory provision. Bombay High Court also in the case of Union of India Vs. M P Desal reported as 2019 (366) ELT 251 (Bom) has held that amount seized in cash by the authorities is to be refunded along with the interest. Though in this case the rate of interest was held to be simple at the rate of 8%. However, there already has been decisions of Kerala High Court in the case of Sony Pictures Networks India Pvt. Ltd. Vs. UOI reported as 2017 (353) ELT 179 (Ker) wherein the decision of Hon'ble A....
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....ase. It is a case of the appellant as set out above in the instant case for the assessment year 1978-79, it has been deprived of an amount of 40 lakhs for no fault of its own and exclusively because of the admittedly unlawful actions of the 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. RamanathaAiyar'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; some thing 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 m....
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....as held that in the light of the above discussed notifications the grant of interest at the rate of 12% per annum seems to be appropriate. The decision of Hon'ble Apex Court in the case of Sandvik Asia Ltd. (supra) has also been relied upon. Hon'ble High Court of Kerala also in the case of Sony Pictures Networks India Pvt. Ltd. (supra) has held that the interest on the refund shall be payable at the rate of 12% per annum. The previous judgment of Hon'ble Apex Court in the case of I.T.C. Ltd. (supra) has been relied upon, where the Apex court confined the rate of interest to 12% and further held that any judgment or decision of any high court taking a contrary view will be no longer a good law. The case law as relied upon by the appellant has been discussed by this Tribunal in the case of Riba Textiles Ltd. (supra) holding that those decisions are not applicable for the refund of the amount of pre deposit. 5.13 The above entire discussion makes it clear that the amount in question was an amount in the form of pre-deposit. Hence, it is the refund in terms of Section 35FF. However, the interest on sanctioned amount of refund has....