TaxTMI 
TaxTMI 
2024 (10) TMI 326
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....ed." 2.1The appellant is registered under the Service Tax vide registration no AAACK9894MSD002 for providing taxable services under the category "Business Auxiliary Services". They have been appointed as selling agent or a Distributor for the revenue district of Hardoi by M/s Bharat Sanchar Nigam Limited for the SIM Cards & Recharge Coupons and TOP up Vouchers through the network of retailers which was not taxable as entire service tax had already been paid by BSNL. 2.2 A show cause notice was issued to the appellant company and demand of Rs. 36,40,956/-with interest confirmed and Penalty of Rs. 36,45,956/- also imposed vide Order-in- Original dated 23-08-2010. The appellant deposited the Service Tax demanded under protest. 2.3 The appellant challenged this order before Commissioner (Appeal) who vide Order-in-Appeal No. 168-ST/LKO/2011 Dt. 30-06-2011 allowed the appeal. 2.4 Revenue challenged this order before the CESTAT. Vide Final Order No. ST/A/70833- 70850/2017-CU[DB] Dt. 17-08-2017 the appeal filed by revenue was dismissed. 2.5 In the meantime appellant deposited Rs 4,78,499/- and Rs 4,54,809/- for the subsequent periods. 2.6 Appellant filed claims for refund of the amou....
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....onsequently the revenue has no authority to retain as it would be in violation of Article 265 of the constitution. 3.3Learned authorized representative re-iterates the findings recorded in the impugned order. 4.1I have considered the impugned order along with the submissions made in appeal and during arguments. 4.2Both the order in original is similarly and identically worded. I am referring to order in original dated 09.07.2019, which is reproduced below: "4.2 Further I find that Assistant Commissioner. CGST & Central Excise, Division Sitapur has sanctioned Refund Claim of Rs.4,78,499/- & Rs,4,54,809/- vides Order-in- Original No. 05/ST/Refund /AC/STP/2019 & 06 /ST/Refund /AC /STP/2019 both dated 11.06.2019 4.3Further I find that as per Para-5 of the Board's Circular No 984/08/2014-CX diated 12.2014 issued vide F. No. 390/Budget/1/2012-JC, Government of India, Ministry of Finance Department of Revenue (Central Board of Excise & Customs), New Delhi, states that 5.1Where 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 ....
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....454809 217633 Grand Total 462402 4.5Further I find that in the similar issue, the Assistant Commissioner. Central Goods & Service Tax, Division-ll, Bareilly has allowed refund Rs.1,51,966/- with interest Rs.9,293/., totaling Rs 1,61,259/- vide his Order-In- Original No. 23/Refund/ST/2017-18 dated 19.03.2018 to M/s Bajaj Infrastructure Development Company Limited, Barkhera Kalan, District - Pilibhit (UP,). 4.6Further I find that as per Section 35FF - Interest on delayed refund of amount deposited under Section 35F, "Where an amount deposited by the appellant under section 35F is required to be refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, not below five 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, on such amount from the date of payment of the amount till, the date of refund of such amount: Provided that the amount deposited under section 35F, prior to the commencement of the Finance (No. 2) Act, 2014, shall continue to be....
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....tioned Priod of intertest Amount of Interest Year Days 1. 0051 24.12.10 718207 15.07.19 8 203 368706 4.4I find that the issue involved in the present case is no longer res-integra and is squarely covered by the decisions of Hon'ble Supreme Court as follows: A.Ranbaxy laboratories Ltd. [2011 (273) E.L.T. 3 (S.C.)] "12. Thus, ever since Section 11BB was inserted in the Act with effect from 26th May 1995, the department has maintained a consistent stand about its interpretation. Explaining the intent, import and the way it is to be implemented, the Circulars clearly state that the relevant date in this regard is the expiry of three months from the date of receipt of the application under Section 11B (1) of the Act. 13.We, thus find substance in the contention of learned counsel for the assessee that in fact the issue stands concluded by the decision of this Court in U.P. Twiga Fiber Glass Ltd. (supra). In the said case, while dismissing the special leave petition filed by the revenue and putting its seal of approval on the decision of the Allahabad High Court, this Court had observed as under: "Heard both the part....
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....the date on which order of refund is made. B. Willowood Chemicals Pvt. Ltd. [2022 (60) G.S.T.L. 3 (S.C.)] "18. Coming back to the present cases, the relevant provision has prescribed rate of interest at 6 per cent where the case for refund is governed by the principal provision of Section 56 of the CGST Act. As has been clarified by this Court in Modi Industries Ltd. and Godavari Sugar Mills Ltd. wherever a statute specifies or regulates the interest, the interest will be payable in terms of the provisions of the statute. Wherever a statute, on the other hand, is silent about the rate of interest and there is no express bar for payment of interest, any delay in paying the compensation or the amounts due, would attract award of interest at a reasonable rate on equitable grounds. It is precisely for this reason that paragraph 9 of the decision in Godavari Sugar Mills Ltd. accepted the submission made by the Learned Counsel for the respondents and confined the rate of interest to the prescription made in the statute. The award of interest at a rate more than what was prescribed by the statute was only for a period beyond 20 years where the matter was not strictly covered by the sta....
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....followed by another SCN dated 29 January 2007 in terms of which the Department raised a demand for additional duty as well as proposing penal action again against the noticees for having violated the provisions of an exemption notification. The petitioner asserts that during the pendency of those proceedings, it was also forced to deposit an amount of Rs. 20,00,000. The SCNs were ultimately finalized in terms of the order in original dated 08 February 2008. 4.In terms of the aforesaid order, the Additional Commissioner confirmed the duty demand of Rs. 45,31,574/- under Section 11A of the 1944 Act and held the petitioners liable to pay the same along with interest thereon in accordance with Section 11AB of the 1944 Act. Further directions were framed for confiscation of cash amounting to Rs. 44,96,000/- and the imposition of monetary penalties amounting to Rs. 45,31,574/-. The amount of Rs. 20,00,000/- which had been deposited by the petitioners during the pendency of the SCN proceedings was also appropriated against the demands which stood crystallized. 5.Aggrieved by the aforesaid order, the petitioner preferred an appeal. That appeal came to be allowed in toto by the Appellat....
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.... subsection (1) of Section 35-B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed Rupees Ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. Explanation. -For the purposes of this section "duty demanded" shall include, - (i)amount determined under Section 11-D. (ii)amount of erroneous CENVAT credit taken. (iii)amount payable under Rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rules, 2002 or the CENVAT Credit Rules, 2004.]" "Section 35-FF. Interest on delayed refund of amount deposited under Section 35-F.-Where an amount deposited by the appellant under Section 35-F is required to be refunded consequent upon the order of the appellate authority, there shall be paid to the appellant interest at such rate, not below five per cent and not exceedin....
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....y be made in compliance with Section 35F of the 1944 Act. The Circular of the Board too strikes an identical position when it is stated that a deposit which is made in compliance with a statutory pre-condition for the preferment of an appeal cannot be viewed as "duty". It is the aforesaid aspect which appears to have weighed with the Board in proceeding to formulate its directive for refunds being affected immediately upon an appeal coming to be decided in favour of the assessee and not being made dependent upon any application being made in respect thereof. 27.The aforesaid position stands further fortified when one reads Section 35FF of the 1944 Act. As would be evident from a reading of that provision, Section 35FF as distinct from Section 11B does not require the making of a formal application by the assessee. In fact, and contrary to Section 11B, the said provision uses the expression ".... there shall be paid to the appellant interest....". Thus, the language of Section 35FF is an embodiment of the manifest obligation of the respondents to refund the pre-deposit consequent to an order passed by the Appellate Authority notwithstanding an application having not been made by t....
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....liable to be refunded. There cannot be a dispute regarding the aforenoted general proposition. What we seek to emphasize here is that in the present case, the issue of refund is duly regulated by two statutory provisions whose prescriptions would necessarily have to be adhered to. However, for reasons aforenoted we find ourselves unable to endorse the observation appearing in Para 34 of the report where a deposit of duty and a pre deposit were identical concepts. As was noted hereinbefore, a pre-deposit made as a condition of filing an appeal is in any case not considered to be "duty" even by the respondents. 32.The decision of this Court in Team HR Services had frowned upon the distinction sought to be advocated by the respondents there between a deposit made under protest and a pre-deposit made in connection with an appeal. As would be further evident from a reading of Paras 14 and 15 the counsel appearing for the respondents had also failed to draw the attention of the Court to any statutory provision which governed the issue of refund. The aforesaid decision is thus clearly distinguishable especially when undisputedly, in the present matters the issue of refund is governed by....