2024 (10) TMI 722

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....yment of sanctioned total amount Rs. 11,85,717/- (Rs 9,20,408/- + Rs. 2,65,309/-) (Eleven lakh eighty five thousand seven hundred and seventeen only) in Bank Account of claimant. 2.1 Show cause notice dated 10.05.2011 was issued to appellant for recovery of Service Tax amounting to Rs.11,51,270/- and the same was confirmed by the Additional Commissioner, Central Excise, Kanpur vide Order-in-Original No. 12/ADC/ST/2012 dated 17.05.2012. 2.2 Aggrieved appellant filed an appeal before Commissioner (Appeal), Central Excise & Service Tax, Kanpur and the Commissioner (Appeal) vide Order-in-Appeal No.294-ST/APPL/KNP/2012 dated 16.11.2012 modified the Order-in-original No. 12/ADC/ST/2012 dated 17.05.2012 by confirming the demand of Service Tax amounting to Rs.7,70,407/- along with interest and penalty under Section 78 of the Finance Act 1994. 2.3 Aggrieved the appellant filed an appeal along with stay application (in terms of erstwhile Section 35F of Central Excise Act, 1944 read with Section 83 of Finance Act, 1944) before tribunal. CESTAT, vide stay Order No. SO/ST/52751/2014-CU(DB) dated 28.07.2014 stayed the Order-in Appeal subject to condition that the appellant deposit the s....

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....lant was not eligible for interest under of Central Excise Act, 1944 2.8 By the impugned order appeal filed by the revenue has been allowed. 2.9 Aggrieved appellant has filed this appeal. 3.1 I have heard Shri Gokul Holani, Advocate for the appellant and Shri A K Choudhary, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submitted that: The entire payment was of pre-deposit in appeal filed by them in the first round of litigation was made after 06.08.2014 the date of commencement of Section 35FF as inserted by Finance (No 2) Act, 2014, so the order in original granting interest from the date of deposit cannot be faulted with; Impugned order setting aside the order in original and allowing the appeal filed by the revenue is without merits and needs to be set aside. The impugned order has been passed contrary to the principles of judicial discipline and should be set aside for this reason also in view of the decisions in the case of: Kamalakshmi Finance Corporation Ltd. [1991 (55) ELT 433 (SC)] Beena Commercial Corporation [1993 (68) ELT 569 (Bom)] Ramnath Housing Pvt Ltd [Final....

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....demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impost so as to safeguard the interests of revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. 35FF Interest on delayed refund of amount deposited under the proviso to section 35F. - Where an amount deposited by the appellant in pursuance of an order passed by the Commissioner (Appeals) or the Appellate Tribunal (hereinafter referred to as the appellate authority), under the first proviso to section 35F, is required to be refunded consequent upon the order of the appellate authority and such amount is not refunded within three months from the date of communication of such order to the adjudicating authority, unless the operation of the order of the appellate authority is....

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....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 governed by the provisions of Section 35FF as it stood before the commencement of the said Act. 4.2 On perusal of aforementioned Sections of the Central Excise Act, 1944, it can be seen that there is specific provision " provided that the amount deposited under section 35F, prior to the commencement of the Finance (No.2) Act, 2014, shall continue to be governed by the provisions of Section 35FF as it stood before the commencement of the said Act". In this case, although I find that the amount of deposit under section 35F is later to 06.08.2014, however, it is also a fact that proviso clearly states that "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". I find that in the present case appeal has been filed before the Hon'ble CESTAT Allahabad and also pre-deposit was made in complian....

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....on to the computation of interest and is reproduced below: 09. For interest calculation, it requires to calculate the number of days between dates of deposition of pre-deposit to the date of sanction of re-deposit refund. Date of Pre-deposit (Rs. 4,00,547/- + 2,87,795/- 82,066/- = Rs. 7,70,408/-) for filing appeals before CESTAT, Allahabad i.e. 08.01.2015. Date of Pre-deposit (Interest = Rs 1,50,000/-) for filing appeals before CESTAT Allahabad i.e. 17.01.2015 S No Year Number of Days for Rs. 7,70,408/- (Rs. 4,00,547/- + 2,87,795/- 82,066/-) Year Number of Days for Rs. 7,70,408/- 1 2015 (from 08.01.2015 to 31.12.2015) 358 2015 (from 17.01.2015 to 31.12.2015) 349 2 2016 365 2016 365 3 2017 365 2017 365 4 2018 365 2018 365 5 2019 (from 01.01.2019 to 29.10.2019) 302 2019 (from 01.01.2019 to 29.10.2019) 302   Total 1755   1746 4.4 From the above, it is evident that the entire amount was deposited by the appellant on 08.01.2015 and 17.01.2015 which has been claimed as refund by the appellant. There is no dispute in respect of the deposit made or the dat....

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....f interpretation that the statute should be interpreted in accordance with the words used in the statute. Reference is made to the decision of Hon'ble Supreme Court in the case of Dilip Kumar & Co [2018 (361) E.L.T. 577 (S.C.)] wherein following has been observed: "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 ....