TaxTMI 
TaxTMI 
2024 (6) TMI 350
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....962 reads as under : "(1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely : --- (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction," 9. From the statutory provisions it is established that the period of one year shall commence from the date of the Final Order on the issue which was 24.08.2018. On this issue, even through the appellants tried to rely on some decisions of the Tribunal, I find that the Hon'ble Supreme Court has already settled the issue way back in 1997 which was also followed in subsequent decisions by the Supreme Court in the case of Porcelain Electrical Mfg. Co. reported in 1998 (98-ELT-583), in the case of UOI vs. Kirloskar Pneumatic Co. reported in 1996 (84-ELT-401), in the case of Miles India Ltd., Anam Electrical Manufacturing Co. etc. by the Supreme Court in which it was categorically held again and again that refund claims filed before t....
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....)]. ➢ Undisputedly these amounts were paid under protest for the release of confiscated goods and the appeal has been allowed with consequential relief by the Tribunal. ➢ As this is a consequential refund as per the said order Revenue was bound to pay the same and could not have been rejected on the ground of limitation as these amounts were deposited under protest. ➢ The period of limitation should not be applied for rejecting this refund claim. Reliance is placed on the following decisions:- India Swift Lands Ltd. [(2017) 78 taxmann.com 209]. Poddar Pigments Ltd. [2006 (206) E.L.T. 563 (Tri.- Del.)]. Piramal Spg. & Wvg. Mills [2004 (175) E.L.T. 256]. Sunil Synchem Ltd. [2003 (157) E.L.T. 58 (Tri.- Del.)]. Shree Ram Food Industries [2003 (152) E.L.T. 285 (Guj.)]. ➢ the impugned order needs to be set aside and the refunds to be allowed in favour of appellants 3.3 Learned Authorized Representative reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with submissions made in the appeal and during the course of arguments. ....
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....T)] following was held: "3. On a careful consideration of the submissions made by both the sides, I find that in this case the question of limitation will not apply as provided under Section 11B of the Central Excise Act as the amount paid by the appellants on the direction of the department was being contested by them from the adjudicating stage till they won the appeal before the Tribunal. Therefore, such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order. The appeal is, therefore, allowed." 4.4 Similar view was expressed by the tribunal in case of Hawkins Cookers Ltd. [2017 (346) E.L.T. 298 (Tri. - Mumbai)] observing as follows: "5. I find that the original dispute raised by the department is that the admissibility of Cenvat credit in respect of packing mate....
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....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." 4.8 In case of Abdulla Gani [2013 (298) E.L.T. 221 (Bom)], Hon'ble Bombay High Court has held as follows : "9. Strictly speaking, Section 27A applies to a claim of refund of duty or interest and does not specifically refer to the payment of interest on a refund of penalty or on pre- deposit effected before the Appellate Tribunal or, for that matter, before the appellate authority. In Commissioner of Central Excise, Hyderabad v. I.T.C. Limited - 2005 (179) E.L.T. 15 (S.C.), the issue before a Bench of three learned Judges of the Supreme Court in a batch of appeals was whether a pre-deposit made as a pre-....
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....ith the provisions of sub-section (2): PROVIDED FURTHER that the limitation of one year shall not apply where any duty or interest has been paid under protest: 3[PROVIDED ALSO that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded.] Explanation: For the purposes of this sub-section, "the date of payment of duty or interest in relation to a person, other than the importer, shall be construed as "the date of purchase of goods" by such person. (1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest, in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty or interest, has not been passed on by him to any other person. (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely:- (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of ....
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....he law in a given case; whether the Legislature intended to exclude operation of law in a given case; whether Legislature intended to give discretion to enforcing authority or to adjudicating agency to apply the law, are essentially questions to which answers can be sought only by knowing the intention of the legislation. Apart from the general principles of interpretation of statutes, there are certain internal aids and external aids which are tools for interpreting the statutes. 17. The long title, the preamble, the heading, the marginal note, punctuation, illustrations, definitions or dictionary clause, a proviso to a section, explanation, examples, a schedule to the Act etc., are internal aids to construction. The external aids to construction are Parliamentary debates, history leading to the legislation, other statutes which have a bearing, dictionaries, thesaurus. 18. It is well accepted that a statute must be construed according to the intention of the Legislature and the Courts should act upon the true intention of the legislation while applying law and while interpreting law. If a statutory provision is open to more than one meaning, the Court has to choo....
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....medy to which the enactment is directed..." 19. The well-settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. 20. In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes. Nevertheless, if the plain language results in absurdity, the Court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative pu....
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....t interpretation‟, as evolved in Indian law and how the higher Courts have made a distinction while interpreting a taxation statute on one hand and tax exemption notification on the other. In Black‟s Law Dictionary (10th Edn.) „strict interpretation‟ is described as under : Strict interpretation. (16c) 1. An interpretation according to the narrowest, most literal meaning of the words without regard for context and other permissible meanings. 2. An interpretation according to what the interpreter narrowly believes to have been the specific intentions or understandings of the text‟s authors or ratifiers, and no more. - Also termed (in senses 1 & 2) strict construction, literal interpretation; literal construction; restricted interpretation; interpretatio stricta; interpretatio restricta; interpretatio verbalis. 3. The philosophy underlying strict interpretation of statutes. - Also termed as close interpretation; interpretatio restrictive. See strict constructionism under constructionism. Cf. large interpretation; liberal interpretation (2). "Strict construction of a statute is that which refuses to expand the law by implication....
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....o;strict interpretation‟ does not encompass such literalism, which lead to absurdity and go against the legislative intent. As noted above, if literalism is at the far end of the spectrum, wherein it accepts no implications or inferences, then „strict interpretation‟ can be implied to accept some form of essential inferences which literal rule may not accept. 25. We are not suggesting that literal rule de hors the strict interpretation nor one should ignore to ascertain the interplay between „strict interpretation‟ and „literal interpretation‟. We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. Indeed, it is well- settled that in a taxation statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation ....
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....n that the benefit can be extended to legal entities not referred to in the Act as there is no equity in matters of taxation " Yet again, it was observed : "It may thus be taken as a maxim of tax law, which although not to be overstressed ought not to be forgotten that, "the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax on him", [Russel v. Scott, (1948) 2 All ER 1]. The proper course in construing revenue Acts is to give a fair and reasonable construction to their language without leaning to one side or the other but keeping in mind that no tax can be imposed without words clearly showing an intention to lay the burden and that equitable construction of the words is not permissible [Ormond Investment Co. v. Betts, (1928) AC 143]. Considerations of hardship, injustice or anomalies do not play any useful role in construing taxing statutes unless there be some real ambiguity [Mapp v. Oram, (1969) 3 All ER 215]. It has also been said that if taxing provision is "so wanting in clarity that no meaning is reasonably clear, the Courts will be unable to regard it as of any effect [IRC v. Ross and Coutler, (1948) 1 All ER 616....
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....efore taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of Legislature‟s failure to express itself clearly". 4.12 I do not find any merits in the submissions made to the fact that the provisions of Section 27 could not apply to the case of refund of penalty and fines. Hon'ble Supreme Court has in the case of Mafatlal Industries [1997 (89) E.L.T. 247 (SC)] held as follows:- "99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commenc....