TaxTMI 
TaxTMI 
2026 (2) TMI 1077
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....6 dated 01.12.2000 demanding payment of Additional Duty of Excise ("AED (T&T)") on yarn cleared to the Domestic Tariff Area ("DTA") w.e.f. 01.03.2000, as per Section 3(1) of the Central Excise Act, 1944 ("Central Excise Act") and Notification No. 08/97 dated 01.03.1997, as amended by Notification No. 11/2000 dated 01.03.2000. The Appellant replied via letter dated 16.06.2001 stating that duty is not payable, hence, such payment was not required to be made in terms of Notification No. 55/91 dated 25.07.1991 and as was decided vide the Adjudication Order OIO No. 49/2001 dated 23.04.2001. 3. However, the Superintendent-Gajraula served another letter bearing C. No. I-CL-PL/R-I GAJ/2000-2001/695 dated 12.10.2001 stating that the Appellant is liable to pay duty along with interest @24% as per Circular No. 554/50/2000-CX dated 19.10.2000. The Appellant reiterated that the duty on DTA sale is exempt under Notification No. 55/91 dated 25.07.1991. It is the case of Appellant that on account of directions of the Superintendent-Gajraula, the Appellant paid the duty amounting to Rs 22,30,445/- through Form TR-6 (32 challans) dated 30.12.2000 to 29.03.2003 under-protest on 22.10.2001 and expl....
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....he second proviso to Section 11B(1) of the Central Excise Act provides that the limitation for filing a refund application is not applicable where duty is paid under protest. The Appellate Authority held that any payment made pursuant to a demand by the department which is not voluntary can be treated as a payment under-protest. The Appellate Authority further noted that the record confirms that the Appellant paid AED (T&T) under protest after it was pointed out by the Department and duly informed the Department. There is no document or order on record indicating that the protest was ever withdrawn or vacated. The Adjudicating Authority's view that the protest ended upon de-bonding of the EOU in 2007 is incorrect, as no communication or order to that effect exists. Therefore, the payment remained "under protest" at the time of filing the refund claim, and the limitation period does not apply. Accordingly, the OIO-1 was set aside and the appeal was allowed and the Department was directed to process the refund with interest within 30 days from receipt of the OIA1. 8. Thereafter, the Superintendent, Central GST, RangeDhampur ("Superintendent Dhampur") submitted his verification....
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....cation No. 67/2003-C.E. (N.T.) dated 12.09.2003 under Section 11BB of the Central Excise Act has fixed the rate of interest on delayed refund as 6% per annum, hence the rate of 12% per annum sought by the Appellant is fallacious and contrary to law. 12. Aggrieved by the Impugned Order, the Appellant has filed the present appeal. 13. Ld. counsel for the Appellant submits that the duty paid under-protest and prior to any adjudication cannot be construed as 'duty' payable under the Central Excise Act. He further submits that unless such an amount is appropriated against a confirmed demand through a proper adjudication order, it cannot acquire the character of duty and remains merely a deposit, retained without the authority of law. He also emphasized that the department has itself acknowledged that the levy was unsustainable and, accordingly, a refund was also sanctioned. Therefore, once it is admitted that no duty was legally payable, the amount deposited under-protest cannot be treated as 'duty' for the purposes of invoking section 11BB of the Central Excise Act. To buttress his submissions, he relied on the of judgment of Hon'ble Meghalaya High Court in The Principal Commissi....
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.... duty, such as the revenue deposit in that case. There is no provision in the Central Excise Act, which deals with refund of revenue deposit and so rate of interest has not been prescribed, when revenue deposit is required to be refunded. I reproduce below the relevant portion of the judgment for reference: "25. Before adverting to the aforesaid decisions relied upon by the learned counsel for the Appellant, it would be appropriate to refer to the provisions contained in the Central Excise Act 1944 [Excise Act] relating to refund. 28. Section 11B of the Excise Act deals with claim for refund of duty and interest, if any, paid on such duty. It provides that any person claiming refund of any duty of excise and interest may make an application for such refund of duty and interest. 29. Section 11BB provides for interest on delayed refund. It states that if any duty ordered to be refunded under sub-section (2) of section 11B is not refunded within three months from the date of receipt of the application, than the applicant shall be entitled to interest after the expiry of three months from the date of receipt of the application at such rate not below 5% and no....
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....er, Central Goods and Service Tax v. M/s Parle Agro Private Limited (supra), has held as under: "20. Seen in that light, the interest liability incurred by the revenue does not flows in terms of the order dated 30.10.2018 passed by the Assistant Commissioner. It is not traceable to Section 11BB of the Act. For the reasons noted above that liability has been incurred by virtue of revenue receipt of the assessee deposited under force or in circumstances other than those governing payment of duty, fines and penalties. To that extent the finding of the Tribunal giving rise to this appeal cannot be faulted. 21. The decision of Hon'ble Supreme Court in the case of Ranbaxy (supra) is not in favour of the revenue. In fact is not on the point. There after making deposits of amounts towards payment of duty, the assessee had claimed rebate. The entitlement to rebate inheres in it the liability to pay duty. In other words the claim for rebate may arise only where there pre-exists a liability to pay duty. That liability not only existed that had been discharged by Ranbaxy. Later, the claim for refund had been made. 22. Similarly in Hamdard (supra) after payment of....
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....ble from the date of deposit of the amount, whereas the Revenue has argued that interest, if any, can be granted only after the expiry of three months from the date of filing of the refund application, by placing reliance on section 11BB of the Central Excise Act. So, first, it is important to understand the applicability of Section 11BB of Act in this case. I reproduce below the relevant portion of Section 11BB, for the sake of reference: "11-BB. Interest on delayed refunds.- If any duty ordered to be refunded under sub-section (2) of Section 11-B to any applicant is not refunded within three months from the date of receipt of application under subsection (1) of that section, there shall be paid to that applicant interest at such rate, [not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed 3[by the Central Government, by notification in the Official Gazette,]] on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty: Provided that where any duty ordered to be refunded under sub-section (2) of Section 11-B in respect of an a....
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....ssioner of Customs (Exports), New Delhi [Customs Appeal No. 51301 of 2023 dated 06.09.2024, wherein it has been held that amounts deposited during investigation or adjudication proceedings are in the nature of deposits under protest and interest thereon is payable from the date of deposit till the date of refund. 26. The issue is no longer res integra in view of the decision of this Tribunal in Parle Agro (supra), which has been affirmed by the Hon'ble Allahabad High Court. It has been conclusively held therein that Section 11B/11BB of the Central Excise Act applies only to refunds of duty and has no application to refunds of revenue deposits. Consequently, the restriction contained in Section 11BB regarding commencement of interest after expiry of three months from the date of filing of the refund application cannot be imported into cases involving refund of revenue deposits. Therefore, the Appellate Authority, while passing the Impugned OIA, has failed to examine the applicability of Section 11BB of the Central Excise Act in the correct legal perspective and has mechanically denied interest from the date of deposit by treating the amount as duty, without recording any finding ....