TaxTMI 
TaxTMI 
2024 (10) TMI 326
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....e and the same is set aside. The appeal is allowed." 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 p....
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....ired to pay any amount, then the appellant was clearly entitled to refund of amount deposited under protest and consequently 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 sh....
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.... 11.06.19 7 122 6167 12 00184 31.01.12 14485 11.06.19 7 131 6396 13 00183 29.02.12 21256 11.06.19 7 103 9287 14 00185 31.03.12 12615 11.06.19 7 72 5448 15 00201 06.07.12 9152 11.06.19 6 339 4354 16 00202 06.07.12 14298 11.06.19 6 339 5944 17 00203 06.07.12 16002 11.06.19 6 339 7613 18 00199 08.02.13 4942 11.06.19 6 123 1879 Total 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 b....
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....ting law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944):". Besides, Rs 4,62,402/- is as interest of refund, was not available to them on appointed day (i.e. 01.07.2017) therefore the said amount could not have been carried forward as input tax credit under Section 140 of the CGST Act,2017. "Therefore, this refund claim is not hit by the provisions of last proviso section 142(3) of CGST Act 2017." 4.3In order in original dated 18.07.2019 interest has been determined as per the table below: S. No. GAR-7 Challan No Date Amount (Rs) Date of refund sanctioned 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 st....
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....ted that application by the assessee requesting for refund, was filed before the Assistant Commissioner on 12th January 2004, the Court directed payment of Statutory interest under the said Section from 12th April 2004 i.e. after the expiry of a period of three months from the date of receipt of the application. Thus, the said decision is of no avail to the revenue. 15.In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from 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, th....
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.... 6 per cent per annum have already been made over to them, nothing further need be done in both the cases." 4.5After taking note of decision of Hon'ble High Court of Allahabad in acse of ebiz.com, Hon'ble Delhi High Court has in case of Goldy Engineering Works [Order dated 14.07.2023 in WP (C) 4332/2022] observed as follows: "3. For the sake of brevity, the Court deems it apposite to notice the facts as they obtain in the writ petition filed by M/s Goldy Engineering Works vs. Commissioner of Central Excise & Anr.3 On 27 July 2006, a Show Cause Notice4 is stated to have been issued to the petitioner, its proprietor, one M/S Aay Kay Engineering Works and its proprietor, in respect of certain goods which had been seized. The aforesaid SCN was 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 ....
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....ll not entertain any appeal- (i)under sub-section (1) of Section 35, unless the appellant has deposited seven and a half 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 a decision or an order passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii)against the decision or order referred to in clause (a) of subsection (1) of Section 35-B, unless the appellant has deposited seven and a half 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. (iii)against the decision or order referred to in clause (b) of 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: ....
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....existence. It merely places the enforcement of the order appealed against in abeyance. The order of stay would, in any case, be deemed to have never existed once the appeal comes to be dismissed. 25.We further note that the subject of interest on delayed refund which is governed by Section 11BB itself prescribes the starting point for payment of interest on delayed refunds to be the date when an application under Section 11B (1) is received. On a conjoint reading of Sections 11B and 11BB of the 1944 Act, therefore, we come to the irresistible conclusion that interest on delayed refund is clearly dependent upon the making of a formal application as stipulated by Section 11B of the 1944 Act. 26.We also find merit in the contention canvassed by Ms. Narain who had submitted that a refund of duty and interest paid thereon is liable to be viewed as distinct from a pre- deposit that may 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 a....
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....fiably retained or remitted with undue delay. The respondents cannot be permitted to retain moneys which are otherwise not due or are otherwise liable to be returned. The solitary question which stands raised in these matters is the date from which that interest would flow. In Shri Jagdamba Polymers, the High Court on facts had found that the refund was inordinately delayed even though a claim for the same had been promptly lodged. This is clear from Para 7 of the report. The said decision is thus clearly not an authority for the proposition that a refund must automatically follow de hors the requirements of Sections 11B and 11BB. 31.In e BIZ, the Allahabad High Court was not dealing with a claim for refund of "duty", but an amount deposited during investigation. The High Court further went on to hold that even in the absence of a statutory provision if it be found that tax or duty had been wrongly collected, it would be 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 necessari....