TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 418
X X X X Extracts X X X X
X X X X Extracts X X X X
....voluntarily under threat of arrest during investigation on 18.03.2014. The proceedings initiated vide the above SCNs were dropped by the common Adjudicating Authority vide Order-in- Original No. 183/2019 dated 14.10.2019. Thereafter, M/s. Churchit International filed the application for claiming refund of amount of Rs. 50,00,000/- (Rupees Fifty Lakhs only) in the office of the Commissioner of the Customs, ICD TKD, Delhi on 22.01.2020, which was transferred to Air Cargo, NCH. The Assistant Commissioner of Customs vide Order-in-Original No. 04/2021 dated 02/03/2021 rejected the refund claim of Rs.50,00,000/- for want of Original TR-6 Challan. Aggrieved by the impugned Order dated 02/03/2021, the appellant filed an Appeal before Commissioner (Appeals) whereas vide Order-in-Appeal dated 15.09.2021, learned Commissioner (Appeals) set aside Order-in- Original No. 04/2021 dated 02/03/2021 and held that rejection of refund claim is not sustainable. Further it was held that issue of interest is left open to be decided by refund sanctioning Authority. Thereafter, Assistant Commissioner of Customs (Refund) vide Order-in-Original No. 045/2021 dated 24/12/2021 allowed the refund of Rs. 50,00,00....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../s. Digipro Import and Export Pvt. Ltd. Vs. Union of India reported as 2017 (350) ELT 145 (Del.) 4. Learned Departmental Representative on the other hand has mentioned that Commissioner (Appeals) has meticulously examined the issue and rather has sanctioned the interest though @ 6% (as was applicable) that too from the date of deposit. Hence there is no infirmity in the order. Reiterating the findings of Commissioner (Appeals), the appeal is prayed to be dismissed. 5. Having heard both the parties and after perusing the record it is worth noting that amount of Rs.50,00,000/- was deposited much before issuance of show cause notice and adjudication order did not confirm any demand against the appellant and thus the said amount was never appropriated against any demand. There was no demand against the appellant and accordingly such collection of amount was without authority of law. This position of law is now settled by various courts. I rely upon the case of Parle Agro Pvt. Ltd. reported as 2018 (360) ELT 1005 (T-All.) and Omjai Bhavani Silk Mils (P) Ltd. reported as 2009 (243) ELT 560 (T-Bang.). Rely upon the decision of this Tribunal in the case of M/s. Toyota Kirloskar Auto Part....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposit. Such a finding has also been clearly recorded by the Tribunal in the order dated 31.01.2017, which order 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amount in question is neither the amount of duty nor is the amount of pre deposit, the amount in question is merely a deposit with the Revenue which the Revenue had no authority to retain as the appellant was the owner thereof. 10. The said decision of Hon'ble Apex Court in the case of Sandvik Asia Ltd. (supra) is now the law of land in terms of Article 141 of the Constitution of India. The Hon'ble Apex Court, in the said case, has observed as follows: "45. The facts and the law referred to in paragraph (supra) would clearly go to show that the appellant was undisputably entitled to interest under Sections 214 and 244 of the Act as held by the various High Courts and also of this Court. In the instant case, the appellant's money had been unjustifiably withheld by the Department for 17 years without any rhyme or reason. The interest was paid only at the instance and the intervention of this Court in Civil Appeal No. 1887 of 1992 dated 30.04.1997. Interest on delayed payment of refund was not paid to the appellant on 27.03.1981 and 30.04.1986 due to the erroneous view that had been taken by the officials of the respondents. Interest on refund was granted to the appellant afte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lue 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 description; remuneration for loss of time, necessary expenditures, and for permanent disability if such be the result; remuneration for the injury directly and proximately caused by a breach of contract or duty; remuneration or wages given to an employee or officer." 11. Hon'ble High Court Delhi also in the case of M/s. Digipro Import and Export Pvt. Ltd. Vs. Union of India reported as 2017 (350) ELT 145 (Del.) has observed as under: "It is indeed extraordinary that officers at the level of a Superintendent would have such vast powers of collecting duty on the spot without even a quantification of the duty amount preceded by a Show Cause Notice (SCN). No attempt has been made to demonstrate that the above is a procedure known to law. It actually points to the opposite. And that is what makes it inexcusable.... .....This illegal practice adopted by the Anti-Evasion Department of Central Excise requires a deeper investigation. The Court has every reason to believe that this has come to light ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2003-CE dated 12.09.2003 issued under Section 11BB vide which the Central Government has fixed the rate of interest at 6% per annum for the purpose of said section. (iii) The Notification No. 68/2003-CE dated 12.09.2003 issued under Section 11DD vide which the rate of interest fixed by the Central Government is at 15% per annum for the purpose of the said section. (iv) The Notification No. 6/2011 dated 01.03.0211 under Section 11AB wherein Central Government has fixed the rate of interest at 18% per annum for the purpose of the said section. From the above notifications, issued under the respective sections of the Act, it becomes clear that the rate of interest varies from 6% to 18%, subject to notification in that respect. 15. This Tribunal in the case of M/s. Parle Agro Pvt. Ltd. Vs. Commissioner, Central Goods & Service Tax, Noida (vice- Versa) reported as 2021 (5) TMI 870 - CESTAT ALLHABAD has 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. Tribunal Delhi (CESTAT) also in the case of Duggar Fibre Pvt. Ltd. Vs. Commissioner of C. Ex., Cus. & CGST, Delhi reported as 2021 (378) ELT 293 (T....