TaxTMI 
TaxTMI 
2026 (7) TMI 919
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.... 249(GS)ST/J PR/2025 Dated: 20.01.2025 No:- 18/CGST DIVF/REF/202425 30.12.2024 01.07.2012 to 31.03.2013 26.11.2024 Rs 47,21,257/- Refund allowed of Rs 44,15,387/-. Rejected of Rs. 3,058,70/-due to non-submission of challan/certificates 2 ST/51304/ 2025 KBS Enterprises Dated: 24.07.2025 No:- 248(GS)ST/J PR/2025 Dated: 20.01.2025 No:- 17/CGST DIVF/REF/2024- 25 30.12.2024 2014-15 26.11.2024 Rs.50,43,929/- Refund allowed of Rs 49,60,947/Rejected of Rs. 82,982/-due to non-submission of challan/certificates 3 ST/51758/ 2025 KBS Enterprises Dated:13.10. 2025 No:- 325(GS)ST/J PR/2025 Dated: 26.02.2025 No:- 22/CGST DIVF/REF/202425 23.01.2025 2015-16 06.01.2025 Rs.31,94756/- Refund allowed of Rs 26,15,372/Rejected of Rs. 5,79,384/-due to non-submission of challan/certificates 4 ST/51759/ 2025 Ladu Ram Babulal Dated: 26.09.2025 No:- 318(GS)ST/J PR/2025 Dated: 11.07.2025 No:- 17/REFST/2025-26 04.04.2025 01.07.2012 to 31.03.2014 07.02.2025 Rs.51,94,908/- Refund allowed of Rs 51,15,158/- Rejected of Rs. 79,750/-due to non-submission of challan/certificates 5 ST/51760/ 2025 Ladu Ra....
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....ents, Service Tax on work executed by the taxpayer, paid in government account cannot be ascertained. Hence, when tax is not paid there is no question of Refund to be sanctioned. 7.4 The taxpayer has cited the case of GEOJIT BNP PARIBAS FINANCIAL SERVICES LTD. Vs. C.C.E., CUS. & S.T., KOCHI Citation:2015 (39) S.T.R. 706 (Ker.). On being perusal of the case, it is learnt that the case is not similar in the instant refund claim. In that case, the taxpayer had deposited Service Tax due to the reason that they need not pay the same, since the recipient of such service was located outside India and the payment received was in convertible foreign exchange which qualifies as export of service. Whereas, in the instant case, the taxpayer and the recipient both are located within India and it is not the case of export of services, thus the cited case law is not applicable in the instant case. Further, other case laws cited by the taxpayer has different facts also the taxpayer in every citation has mentioned that the tax has been deposited by mistake whereas in the instant case I find that 50% Service Tax was deducted by RHB and 50% of Service Tax was to be paid by the taxpayer as pe....
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....ys a duty unquestioningly -or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasise that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of misconstruction, misapplication or wrong interpretation of a provision of law, rule, notification or regulation, as the case maybe.) Is it open to the manufacturer to say that the decision of a H....
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....rned appellate authority in a comprehensive finding, in para 8 of his order observed that the aspect of time bar was not applicable as the service tax had been paid under a mistake of law. He had also recorded that unjust enrichment was also not applicable in the matter as the burden of tax was borne by the appellant and not passed to any other person. He, therefore, allowed refund of service tax of the amounts held admissible (Rs.51,15,158/- in Appeal No. ST/51759/2025 Rs.49,60,947/- in Appeal No.ST/51304/2025 Rs.26,15,372 in Appeal No.ST/51758/2025 Rs.29,78,083/- in Appeal No.ST/51760/2025 & Rs.44,15,387/- in Appeal No.ST/51300/2025), wherever the appellant had submitted the requisite documents to establish the payment of the said sums. In so far as interest was concerned, the learned Commissioner (Appeal) has recorded an express finding in the aforesaid orders that no interest is payable as the orders were passed well within three months from the date of filing of the refund claims/ application as prescribed under law. Thus he has held that no interest was payable on the amount so paid by the appellants. 8. No Cross-objections have been filed by the Revenue. 9. Before dwel....
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....missioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the [duty of excise and interest, if any, paid on such duty] paid by the manufacturer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (e) the [duty of excise and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (f) the [duty of excise and interest, if any, paid on such duty] born....
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....he goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the ba....
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....passed by the Commissioner (Appeals), Appellate Tribunal [, National Tax Tribunal] or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section." 10. The appellants have submitted that they were engaged in civil construction of individual/independent residential houses (stand alone houses) i.e. single unit/row houses of carpet area less than 60 square meters, as per the work order issued by the RHB, under the scheme for Affordable Housing of the Central Government. They submitted that w.e.f. 01.07.2012, this activity was exempted from payment of service tax vide the Notification No. 25/2012-ST dated 20.06.2012, Sr. No. 14(b) and (c). It was the appellant's case, that in ordinary course when leviable to tax, they would be liable to pay service tax to the tune of 50% while RHB would be required to make the balance 50% of the leviable tax under a reverse charge mechanism (RCM). They submit that the bills raised by the appellants were cleared by RHB after deducting the service tax amount and depositing the same to the government account (though no proof for such a deposit with government is placed on recor....
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.... 13. The contention of the learned Advocate Shri Bipin Garg is that the fact of mentioning in the show cause notice at Para 3 that "Service Tax deposited by the claimant and the service tax deposit by the awarder on non taxable/exempted service" was in itself sufficient compliance of the legal requirements, for purpose of entertaining the refund claim. He thus contended that there was no warrant to furnish any documentary evidence in support of duty payment, to buttress their claims filed for refund and therefore, they would be not required to indicate anymore, by way of primary evidence in the form of duty payment challan/counter foils etc to prove the fact of duty payment. He contends that the need for tendering such evidence would have arisen, had the said fact was not discernible from the show cause notice itself. The requirement for furnishing of challan/certificate from the appropriate authority (RHB), for purpose of claim for refunds, in these cases can thus be dispensed with, in order to seek the benefit of the refund amounts claimed even though there is nothing to show on record, by way of primary evidence and to establish the deduction of the said amounts from the contra....
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....Jaipur [2025 (31) Centax 356 (Tri-Del.)] Each of the said case laws are being discussed, deliberated and dwelt upon in this order at appropriate places. 15. Countering the appellant's arguments, the ld. Authorized Representatives for the Revenue have supported the orders passed by the ld. Commissioner (Appeals) as to be in accordance with law and hence calling for no interference. They submit that in the absence of necessary supporting vouchers, the part amounts of refund claims, as in four of the five claims herein, have been rightly withheld, and cannot be allowed in the absence of requisite documentary evidence to support the claim of duty payment. They further submit that question of interest payment would not arise in the matter, as all admissible and eligible payments were released within three months of the refund claim falling due/filing of the refund claim/application, by the appellants, which fact has also not been controverted by the appellant. (However, this does not reflect the correct picture vis-à-vis the date of filing of the refund claim). The ld. Authorized Representatives have also sought to outright dismiss the argument of the appellant that as the ....
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....ner (Appeals), however, allowed the said refund claims, either in full or in part, and did away with both the bar of limitation and unjust enrichment. The refunds, only to the extent, where no proper supportive documents were tendered, was denied to the appellants, precisely for failure of submission of any challan/certificate from RHB to establish and ascertain that service tax refund claim had actually been deducted from the contractors bills and the same deposited with the department and no separate refund thereof was claimed or made to RHB. 17. Strictly speaking the appellants assertion, dispensing the need for proper documentation, cannot be taken as a gospel, least of all a substitute for hard evidence, as the show cause notice while stating so, is dealing with the refund claim filed by the appellants, as to be on the grounds of "Service Tax deposited by the claimant and Service Tax deducted by the awarder on the Non Taxable/ exempted service". This narration of the appellant's refund claim, by the Revenue, in its notice issued to the appellant, however, cannot be considered as a stamp of assertion by the authority, to the fact of such deduction by the agency concerned and....
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....s. An order/decree was thus required to modify the said assessment, before entertaining any refund claim, as the refund sanctioning authority was not empowered to sit in judgement of the assessing authority, as was held by the Apex Court in the case of ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 SC(LB)] A re-assessment of the original assessment was required to be undertaken before such a sanction was ordered; as it is an established legal principle that refund sanctioning authority acts merely by way of execution of the original assessment and cannot re-open the assessment already undertaken. 19. In order to appreciate the factual position in the matter let it be emphasized that the law on refund has since been settled by the Constitutional Bench of the Apex Court in the case of ITC Limited vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 SC(LB)], wherein it was held by the Hon'ble Apex Court that the refund can be sanctioned only in pursuance of an assessment made and not de hors the assessment. However, in the present case, as evident, the impugned refunds so sanctioned by the lower authority, were so done without applying the....
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....yable by RHB on RCM basis. The appellant has contended that the amount paid by the appellants towards service tax was so done under a mistaken belief of law. However, from the facts on record it nowhere emerges so, as the said service tax was paid continuously over a period of four years between 2012-2013 to 2015-2016, whereas the refund claims were filed almost a decade later during the years 2024 and 2025. It is anybody's guess as to why it took the appellants almost over a decade, to realize that the said tax was paid under a mistaken legal belief. This is so when ordinarily all statutory timelines are of limited shelf life and are generally restricted to a period of five years. Extrapolating this premise further, were the appellants to realize their mistaken belief, say after twenty five years, obviously then it would be their contention that being a case of duty payment under a mistaken belief, it being a case of deposit, no limitation aspect would arise for consideration in the matter, and in ordinary course would have staked a claim for interest payment for twenty five long years, even though the refund was said to be made to the party concerned within three months of the cl....
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.... rule of construction that where the words of statutes are plain and unambiguous effect must be given to them. A court should give effect to plain words, not because there is any charm or magic in the plainness of such words but because plain words may be expected to convey plainly the intention of the legislature to others as well as judges." [Emphasis Supplied] 25. I am afraid no judicial/quasi judicial authority by torturing the language of Section 11BB or by other means attribute to itself a meaning/jurisdiction that it naturally does not bear. In the case of Commissioner of Inland Revenue v. Rossminister Ltd. [(1980) AC-952-1018] it was held that in construing statutory provisions the rule of construction must be: "however much, a court may deprecate an Act, it must, it must apply it. It cannot by torturing its language or any other means construe it so as to give a meaning which the Parliament did not clearly intend it to bear." 26. It is settled law that none can be deprived of his money or subjected to levy of a tax, by the State, without the authority of law. The following legal principles in taxation jurisprudence are too well known to be reiterated. ....
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.... not apply", which plea is however not acceptable, in view of the hon'ble apex court's watershed pronouncement in the Mafatlal Industries Ltd.2 case on the subject of refund of duty. 28. Moreover, it was thus held by the Tribunal in the aforesaid case, that interest as per Section 11BB of the Act would become payable only if there was a delay in processing and sanction of the refund claim under Section 11B ibid, beyond the specified timeline of three months. It be noted that despite the appellant Essjay Telecom praying for a higher rate of interest @ 12%, on the amount held refundable consequent to the order passed by the lower authority, the Tribunal held that interest at the notified rate of 6% only (Notification No.24/2014-CE(NT) dated 12.08.2014 would be payable in terms of Section 11BB of the Act, for the delay in processing of the refund claim. 29. The Tribunal in the case of M/s J K Lakshmi Cement Works v. Commissioner, CGST & Central Excise, Udaipur [Final Order No.50922-50927/2025 dated 18.06.2025] after examining a series of case laws relied upon by the two sides affirmed that Section 11BB would come into play only when there was a delay in sanctioning of the refund....
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....n the case of Mafatlal Industries Ltd. Supra in Part-IV of its order, while summarizing the discussions, had categorically addressed the question of limitation, unjust enrichment (which to my mind has not been properly gone into by the lower authority), unconstitutional levy etc. and had dwelt upon the same in Para 99 of its order. For the purpose of the present appeals, it is felt appropriate to reproduce the apex court's findings quoted in Para 99 of its order, as are germane and material for purpose of the present appeal. "99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and....
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....rgan - but to this Court, which is a civil court. (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlyi....
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....the people being unjustly enriched. (iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (v) Article 265 of the C....
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.... Customs Act are constitutionally valid and are unexceptionable. (x) By virtue of sub-section (3) to Section 11B of the Central Excises and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactment. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32 - is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exerc....
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....hereunder or in any law for the time being in force, no refund shall be made except as provided in terms of 11B of the Act. There can be no stronger language to emphasize the principle, that so long as Section 11B was not held to be ultravires it would be required to be given effect to. 35. It is noticed that over the years, after the hon'ble Supreme Court's ruling in Mafatlal Industries Ltd. supra case, slowly but steadily, the concept of "deposit" has evolved. What started as a deposit in terms of Section 35F of the Act has later branched into sums paid during investigations towards the presumed duty liability though may have been ordered refundable at a later stage. What constituted a "deposit", in terms of apex court's ruling in Mafatlal Industries Ltd. supra, was an unconstitutional levy held as ultra vires. Certainly no sums paid as a result of self-assessment towards assessed duty liability could strictly invite the undertones of a deposit, as they do not fall into this domain. This is so very clear from the apex court's ruling in the case of Mafatlal Industries Ltd.2 supra (as also the Tribunal's rulings cited earlier - the Essjay Telecommunications6 case as well as the ....
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....ance and need for judicial discipline and to giving effect to the orders of the higher appellate authorities, which indeed are binding on the lower authorities. 38. Coming back to the claim of interest sought by the appellant @ 12% alleging that the impugned amount was paid by them under mistake of law, let the appellants be reminded of the age old maxim "Ignorantia Juris Non Excusat" (ignorance of law is no excuse). It may however be added that the term "mistakes of law" has evolved significantly over the years moving from a rigid rejection of the defence to a more nuanced approach. Over time judicial decisions have carved distinct exceptions where a mistake of law goes in to mitigate the liability and answered as a valid defence. This would include - (i) Entrapment of Estoppel - i.e. to say reliance on an official misstatement; when a person commits an act after being explicitly told to so do by a competent legal authority. (ii) Lambert Exception - this legal principle arises out of the famous US Supreme Court case of Lambart v. California (1957) where the Hon'ble Court had ruled that a municipal ordinance requiring convicted felons to register with the Polic....
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....hs from the date of filing of refund claim application as prescribed under the law, therefore, no interest is payable on amount of refund." and when it is undisputedly evident on record, that the adjudication order did not allow the refund and had rejected the same as already noted above in Para 16. The hon'ble Apex court in its authoritative pronouncement in the case of Ranbaxy Laboratories Ltd. v. Union of India [2011 (273) ELT 3 (SC)] had in no uncertain terms held that the claim of interest would arise only after three month from the date of application date and not from the date of order. It also stressed upon the need for submission of documentary evidence, evidencing the payment of duty/interest along with refund claim. The court had further maintained an interest rate of 6% as per the statutory provisions to be paid, in the event of a delay beyond the stipulated timeline. It is thus important to note that for reasons discussed and the laid down principle, the award of interest would mature only when there is a delay beyond three months of the lodging of the claim, in the sanction of the refund amount held due. The hon'ble apex court in Para 15 of its order in the Ranbaxy....
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....on that the decision of the Tribunal in the Parle Agro Ltd. Supra case was based on the apex court's judgement in the case of Sandvik Asia Ltd. v. Commissioner of Income Tax-I, Pune [2006 (196) ELT 257 (SC)] amongst others. Relying thereon the Tribunal in Parle Agro Ltd. supra case, granted interest @ 12% where the amount rendered refundable, was deposited, during the investigation stage of the matter. The factual position in the present appeals ironically is not even remotely akin to the said cases, as in the present appeals : (i) there was no "deposit" done during investigations, but "duty" was voluntarily paid on self-assessment basis. (ii) no case for compensatory payment did arise in the present matter, as the refund was disbursed within three months of holding the admissibility of the claim, unlike the Sandvik Asia Ltd. supra case, where delay ranged around 17-12 years and it was held by the hon'ble apex court that the award of interest at such high a rate was a compensatory retribution and was awarded considering the gross delay caused by the Department and therefore interest on interest was so ordered. It is also to be noted that the appeal filed by the....
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.... dates and further noted that interest cannot be awarded merely on the principles of Equity. However, in view of the fact that the principal amount was not paid within three months of the Tribunal's order, it allowed interest only from a date three months after the Tribunal's order till the date of the refund and that too @ 6% only. While passing the aforesaid orders, the hon'ble Delhi High Court, relied on the following orders of the hon'ble Apex court, wherein the Apex court had held that interest on delayed refund cannot be granted on the basis of equity, unless expressly provided by the Statute. (i) State of Punjab v. Atul Fastners Pvt.Ltd. [2007 (211) E.L.T. 519 (SC)] (ii) Union of India v. Orient Enterprises [1998 (99) ELT 193 (SC)] It would be of interest and relevant in the background of the aforesaid discussions to place on record the following paragraphs of the hon'ble High Court's orders (supra) : "9. Looking to the facts of the present case that - (a) The amount of Rs. 28,76,578/- was paid on three different dates i.e. on 11-3-1998, on 12-5-1998 and on 13-5-1998 and hence it cannot be said that the said deposition of the amount was....
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....: (i) Sudhir Engineering Co. v. Commissioner of Central Excise, Daman [2006 (206) ELT 481 (T)] (ii) ICI India Ltd. v. Commissioner of Customs, Calcutta [2003 (151) ELT 336 (T)] It is therefore imperative for us to note that our actions should not be so directed to reduce the command of the legislature to a dead letter. 47. Interestingly, the apex court's decision in Sandvik Asia Ltd. supra case was examined and explained by a three Judge Bench of the hon'ble apex court in the case of Commissioner of Income Tax, Gujarat v. Gujarat Fluoro Chemicals [2017 (51) STR 236 (SC) (LB)] It was pointed out therein that the said judgement has been "misquoted" and "misinterpreted" by the assessees as well as the Revenue. It was categorically held by the Larger Bench of the hon'ble Apex court that it is only the interest provided under the statute that may be claimed by the assessee from the Revenue and no other interest on such statutory interest. 48. Furthermore, it is absolutely crucial and vital to appreciate that the Tribunal is not a Constitutional Court, but a creature of the statute and therefore there are limitations and fritters imposed to the exercise of its ....
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....lms Mfg. Co. Ltd. [1997 (91) ELT 502(SC)] had held that Tribunal being a creature of the statute derives its power and jurisdiction only from the statute creating it and not outside of it. Instances of the award of interest by Constitutional Courts are a direct outcome of their inherent powers vested in them under the Constitution of India. To even adopt those cases as examples, citing award of interest in a given contextual framework, by the Tribunal would tantamount to exercise of jurisdiction where none vests in the Tribunal and therefore would be outright illegal and not sanctified in law. 50. It is too well known, that Tribunal is not a Court of Equity. The appellants if intending to seek recourse in the matter based on Doctrine of Parity, ought to look for remedy elsewhere and not before this Tribunal, whose powers are circumscribed by the words used in the Statute. The Tribunal does have its limitation, being a creature of the Statute. Therefore, any orders for grant of interest where it falls beyond the realm of Section 11BB of the Act, if issued by the Tribunal are in complete respect no more but an overreach of jurisdiction and are per se ex facie improper and void ab ....
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....h the Tribunal, was concerned and dealing with a case of pre-deposit, on the aspect of the payment of interest, it was held that the provisions of Section 11BB of the Act would squarely apply thereto and a notification prescribed thereunder would be required to be given effect to, in terms of which were issued the notification prescribing the rate of interest admissible which currently stands at 6% w.e.f. 12.09.2003 under Section 11BB of the Act. 53. In the case of Devendra Udyog v. Commissioner, CGST, Jodhpur [2020 (372) ELT 385 (T)] it was held by the Tribunal that Section 11BB prescribes the rate at which interest payments are required to be made. This rate is specified to be in the range of 5-30%. The statute empowers the Central Government to fix the rate of interest by way of Notification. Thus, once there is a Notification of the Central Government fixing interest @ 6%, the same has to be followed as being a part of the statute. The Tribunal noted the relevance of the notification issued under Section 11BB and held as under : "7. In Section 11BB, to clarify the rate of interest in the range of 5% to 30%, the statute itself has empowered the Central Government to ....
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....nterest @ 12%, it is seen that in all these cases, the duty was deposited "under protest" and obviously therefore in the first place it cannot be construed as voluntary payment. There indeed is an entire world of difference between amounts paid voluntarily towards duty and that paid grudgingly registering a protest towards payment of duty. The two cannot be equated and indeed are two extremes of discharging the tax liability. In the present appeals, tax was paid on self-assessment basis willingly of one's own free accord. When there is no such payment under protest and the tax was deposited by the appellant themselves without any compunction, I am of the view that the case laws relied upon by the appellants, would not come to their rescue. However, for sake of records the case laws relied upon by the appellants are being deliberated upon in later paras. 56. As for the refund, the appellant has sought to extricate themselves out of the purview of Section 11B of the Act. That being so, applicability of Section 11BB of the Act, for grant of interest is also bound to fail and cannot be sustained, as Section 11BB, refers in the context, such refund claims of duty, as are ordered to b....
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....y dependent upon making of a formal application as stipulated by Section 11B of the 1944 Act. [Emphasis supplied] 58. Moreover, in respect of the part payments, as held back by the authority below and the appellant's argument that Section 11B of the Act was not applicable, it would be relevant for purpose of clarification and ease of appreciation, to extract Para 29 of the said order of the hon'ble Delhi High Court in the Goldy Engineering Works supra case. The same reads as under : "Regard must also be had to the fact that in the case of refund of duty, it is also incumbent upon the assessee to declare and establish that the burden of tax has not been passed on. Absent that declaration, any refund that may be made would itself amount to the assessee being unjustly enriched. The making of an application and a declaration to the aforesaid effect is thus not merely an empty formality. This too appears to reinforce the imperatives of an application being formally made before a claim for refund is considered." [Emphasis supplied] Obviously the reference to the application would imply the same to be complete in all respects, with all its accompaniment ("documentary ....
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....lication. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. 13. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which int....
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....de in a suit or a writ petition. It is a case of balancing public interest vis-a-vis private interest. Where the petitioner-plaintiff has not himself suffered any loss or prejudice (having passed on the burden of the duty to others), there is no justice or equity in refunding the tax (collected) without the authority of law) to him merely because he paid it to the State. It would be a windfall to him. As against it, by refusing refund, the monies would continue to be with the State and available for public purposes. The money really belongs to a third party - neither to the petitioner/plaintiff nor to the State - and to such third party it must go. But where it cannot be so done, it is better that it is retained by the State. By any standard of reasonableness, it is difficult to prefer the petitioner-plaintiff over the State. ..." 20. In paragraph 91, this court was dealing with the constitutional validity of Section 11B. It was contended that there is no reason why the person who becomes entitled to refund of duty, as a result of appeal or courts order, should also be made to apply and satisfy all the requirements of sub-sections (1) and (2) of Section 11B, when he is ent....
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.... under Section 11B, prior to its amendment in 1991. Sub-sections (3) and (4) of this section are in the same terms as sub-rules (3) and (4) of Rule 11; if anything, subsection (5) was more specific and emphatic. It made the provisions of Section 11B exhaustive on the question of refund and excluded the jurisdiction of the civil court in respect of all refund claims. Sub-rule (3) of Rule 11 or sub-section (3) of Section 11B (prior to 1991) did not say that refund claims arising out of or as a result of the orders of a superior authority or court are outside the purview of Rule 11/Section 11B. They only dispensed with the requirement of an application by the person concerned which consequentially meant non-application of the rule of limitation; otherwise, in all other respects, even such refund claims had to be dealt with under Rule 11/Section 11B alone. That is the plain meaning of sub-rule (3) of Rule 11 and sub-sections (3) and (4) of Section 11B (prior to 1991 Amendment). There is no departure from that position under the amended Section 11B. All claims for refund, arising in whatever situations (except where the provision under which the duty is levied is declared as unconstitut....
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....se of Mafatlal Industries Ltd. Supra holding that refund application beyond period specified under Section 11B of the Act, could not be entertained, unless refund was a consequence of declaration of a provision as "unconstitutional". Suffice, to leave this aspect at this juncture as the Revenue is not in appeal before me. 63. Unimpressive as it may appear, however it is worth mentioning that the aspect of geographical universality of the interpretation of Sections 11B and 11BB of the Act supra, as rendered by the hon'ble Apex court, can also be gauged by the fact that, apart from the judgements of the Delhi and other High Courts in the north, even the Madras High Court in the South, in the case of HerrenKnecht India Pvt.Ltd. v. Asstt. Commissioner of GST & CX, Paneri Division [2023 (12) TMI 251 Madras High Court] had held to the effect that interest under Section 11BB of the Act would accrue only from the date of expiry of three months from the date of receipt of the refund application and not on expiry of three months from the date of communication of the order of the Appellate Authority/Court. In short to state that interest liability accrues only if the amount ascertained as ....
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....ecision was rendered by the hon'ble Apex court in terms of the provisions of the IT Act, in view of the binding principle laid down by the apex court, the ratio thereof is very much applicable to related matters under the indirect tax laws as well. 65. The question for payment of interest has further been examined by the apex court in the case of Godavari Sugar Mills Ltd. v. State of Maharashtra [2013 (6) TMI - 23 (SC)] As the stance of the hon'ble apex court has been on the lines of its cases discussed earlier, for records the case of Godavari Sugar Mills Ltd. supra is not being elaborated in extensive details, except to state that the Bench in the said case was seized with the question of award of compensatory interest @ 9% p.a. or 6% p.a., when Section 6 of Maharashtra Agricultural Land (Ceiling of Holdings) Act, 1961 prescribed payment of interest only @ 3% p.a. Elaborately discussing the various provisions of the said Act, the hon'ble Apex court noted that rate of interest if payment is not made even after 20 years, whether it could be at 3% p.a.; pointing out that Section 26 of the said Act (Maharashtra Agricultural Land (Ceiling of Holdings) Act, 1961) being silent about ....
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.... or charitable activity, is far acquiesced from the present factual matrix and cannot be equated with the present matter, thereby rendering it inapplicable to the context herein. 68. Moreover, so far as the appellant's reliance in the case of Commissioner of Central Excise (Appeals), Bangalore v. KVR Construction supra, is concerned it may be pointed out that the said case was delivered in the context of applicability of limitation under Section 11B for refund of Service Tax paid by mistake on an exempted service. Even though the appellant had filed the said refund claims in Form R, (thereby treating such payments as duty), the hon'ble Karnataka High Court granted relief to the appellant, in exercise of powers vested in it under Article 226 of the Constitution. It is necessary to point out that the question of limitation as settled by the High Court, does not arise for consideration in the present matters. Moreover, as the revenue has neither filed any appeal, nor any Cross-Objections against the orders of the ld. Commissioner (Appeals) the question of limitation is thus foreclosed in the present matters. Further, it is a given fact that this Tribunal is not vested with the powe....
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....rding such findings, the learned Single Judge reached a conclusion that the disinclination to entertain the claim for refund is improper and illegal, therefore, proceeded to quash the orders in that behalf. It is in this context that the Division Bench of the Karnataka High Court speaking through Her Ladyship Hon'ble Mrs. Justice Manjula Chellur as Her Ladyship then was, held thus : "15. We are not concerned with the other conditions of Section 11B of the Act because it is not the case of the appellant Department that the burden of Service Tax was passed on to any other person. As a matter of fact, the controversy in this appeal revolves around the maintainability of the very application filed under Section 11B of the Central Excise Act and whether Sec. 11 applies to the facts of the present case at all. In the case of Mafatlal Industries Ltd. v. Union of India (supra), the question was with regard to the refund of Central Excise and Customs Duties. It was held that all claims except where levy is held to be unconstitutional, is to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to....
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.... petition under Article 226 will not be maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the Constitution is maintainable to assail the levy or order which is illegal, void or unauthorized or without jurisdiction and/or claim refund, in cases covered by propositions No. (1), (3), (4) and (5) in Dulalbhai's case, as explained hereinabove, as one passed outside the Act and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have no application Collector of Central Excise, Chandigarh v. M/s. Doaba Cooperative Sugar Mills Ltd., Jalandhar - 1988 (37) E.L.T. 487 (SC) = 1988 Supp. SCC 683; Escorts Ltd. v. Union of India [1994 Supp (3) SCC 86] Rule 11 before and after amendment or Section 11B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups of categories enumerated in paragraph 6 of this judgment is as follows : Where the levy is unconstitutional outside the category (I) provisions of the Act or not contemplated by the A....
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....xcess amount was paid over duty under Central Excise Act on the direction of the Department. There was an application for refund of amount and the same came to be rejected by the Assistant Commissioner on the ground of lapse of time. It was confirmed by both the Appellate Authority and also the Tribunal. Aggrieved by the order of the Tribunal, Revenue came up before the High Court. Their lordships of the Division Bench held that order of the Tribunal to allow the claim on the basis that amount paid by mistake cannot be termed as duty in the said case was justified and therefore applying the law laid down in the decision of Apex Court in the case of India Cements Ltd. v Collector of Central Excise - 1989 (41) E.L.T. 358, dismissed the appeal. 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as Service Tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this Service Tax, the amount of Rs. 1,23,96,948/- paid by pet....
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....g on that clarification, the refund of duty or Service Tax was claimed. This was squarely a case falling within the provisions of the Central Excise Act, 1944 and therefore, the rule of limitation under Section 11B was applied. That was applied when the application for refund was made invoking Section 11B of the Central Excise Act, 1944. We have no manner of doubt that when this was the provision invoked, same applies with full force including the rule of limitation prescribed therein. For these reasons, we are of the opinion that the decisions relied upon cannot be of any assistance. 20. As a result of the above discussion and finding that the Appeal does not raise any substantial question of law, we proceed to dismiss it. It is, accordingly, dismissed. No costs." [Emphasis supplied] 70. In continuing with the case of Andrew Telecom (I) Pvt.Ltd. supra it be stated that the hon'ble Bombay High Court dismissed the appellants plea where one of the questions raised by the appellant was "....................... if a duty is recovered or paid contrary to the provisions of the Central Excise Act, 1944 or that a service tax was not liable to be recovered and paid in accorda....
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....yond the limitation period prescribed not only under the Central Excise Act, but also the Limitation Act, was well over. In the absence of any direction to the appellants, by the Revenue to make the impugned payments for which the said refund claims, the amounts so paid cannot be construed as a deposit. Indeed, I have not come across a single case as decided by Constitutional Courts, where amounts paid voluntarily and not at the behest of the Revenue, have been held to be "a deposit", which categorization has been broadly earmarked for amounts paid under protest (hence being involuntary) or at the insistence of the tax authorities or during the course of investigation by way of an assumed short levy or it be in the nature of a "pre-deposit", in terms of section 35F of the Act supra. To follow the ratio of the Karnataka High Court in the case of KVR Construction supra case, therefore does not fit into the jig-saw puzzle of the present appeals. Moreover, for the said judgement of the hon'ble Karnataka High Court, which has been relied upon by the appellants and has been the fountainhead of the decision arrived at by the Tribunal in cases cited by the appellant including that of Meenu....
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....roducts Pvt.Ltd. v. Commissioner of Central Excise [2016 (10) TMI 273-P & H] with reference to interest had clarified that the department is liable to make payment of interest after the expiry of three months from the date the refund becomes due. 74. Thus, across the vast spectrum of jurisprudence on the subject the various High Courts/as well as the apex Court have repeatedly ordered for payment of interest from the date after three months of the date of an order in favour of the assesses/appellants or as per Section 11BB of the Act, and not from the date of deposit made by the assesses/appellants, which exception is only made, not as a norm, but by way of requital. Following cases toe the aforesaid analogy and are quoted for records : (i) Bata India Ltd. v. Commissioner of Central Excise, Delhi-IV [2023 (8) Centax 65 (P&H)] (ii) e-Biz.com Pvt.Ltd. v. Commissioner of Central Excise, Customs, Service Tax supra (iii) Estee Auto Pressings Pvt.Ltd. v. Commissioner of Central Excise [2017 (346) ELT 72 (Mad.)] (v) Afsons Infrastructure Ltd. v. UOI [2006 (193) ELT 278 (AP)] (vi) CCE, Hyderabad v. ITC Ltd. [2005 (179) ELT 15 (SC)] (....
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....d come to the aid and rescue of the party. It thus follows that any decision rendered by the Equity Courts (read Constitutional Courts) on considerations of equity/parity/fairness could not form the basis of the Tribunal, passing orders on equitable and even handed considerations. Any such orders would be extra jurisdiction and will therefore be without a precedent value. 77. The Tribunal thus cannot assume a wider jurisdiction and weild powers in excess of that, vested with, under the statute-Supreme Washers Pvt.Ltd. v. Collector of Central Excise, Pune [1994 (73) ELT 430 (T)] in order to ensure its order is legis virtute. 78. In the case of S. Parameswaran v. Secretary Ministry of Finance [2006 (4) STR 406 (Mad.)] despite a tortuous and lengthy litigation, where the claim of the assessee was in seeking interest from the date of seizure, the hon'ble High Court refused so to do and stated that the litigant was entitled to interest only from the date, the appeal came to be decided in favour of the party and not any date in time prior to the said date of the decision. 79. The question that the award of interest under Section 11BB of the Act is automatic and the same would be....
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....erest only upto the date of refund of pre-deposit was upheld, for reasons of delay in releasing the said amounts to the assessee. 82. While doing so the Tribunal did not accept the appellant's reliance on Sandvik Asia supra case and cited the hon'ble Apex Court's decision in the case of Commissioner of Income Tax, Gujarat v. Gujarat Fluoro Chemicals supra, wherein it was pointed out by the hon'ble Supreme Court that the award of interest in the Sandvik Asia16 case was essentially of a compensatory nature for the prejudice that had been caused to the party on account of inordinate delay in making payment by the revenue authorities. It was further held by the apex court that it was because of the mis-interpretation of this case that revenue was obliged to pay interest on interest on its failure to refund interest payable within the statutory period. Paras 6,7 & 8 of the hon'ble Apex court's order, in the Gujarat Fluoro Chemicals supra case, that clarify the entire position, need to be placed on record and are extracted below : "6. In our considered view, the aforesaid judgment has been misquoted and misinterpreted by the assesses and also by the Revenue. They are of the v....
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....hat there was no conflict between the two, as was stated by the hon'ble Apex court in the case of UOI v. Willowood Chemicals Pvt.Ltd. [2022 (60) GSTL 3 (SC)]. 85. It may be noteworthy to mention that in the Willowood Chemicals [2022 (60) GSTL 3 (SC)] case, dealing with a case of refund under Section 54(5) of the IGST Act, it was held by the hon'ble apex court that interest at the given rate was payable, only if refund claim arising from an order of adjudicating authority, appellate authority, tribunal, court was not refunded within the prescribed 60 days from the date of receipt of application filed consequent to such orders. It was held by the hon'ble apex court that the case in hand would have to be decided purely in the light of the concerned statutory provisions and ordered for payment of interest only @ 6% p.a. to the appellants. While doing so the hon'ble Apex court set aside the order of the hon'ble High Cout that had awarded interest @9%, adopting the underlying principle of Sandvik Asia case because of the delay of 94 to 290 days in granting refund. Distinguishing the same the Apex Cout pointed out that a delay of 177 case in Sandvik Asia case was nowhere comparable to ....
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.... of Section 11B(2) are also a must look into. It would thus be inappropriate to hold that Section 11B would not come into play for any payment made under an alleged mistaken belief in law. Case Law Support Drawn by the Appellants 88. In the perspective of aforesaid discussions, it is pertinent that the law as evolved on the subject matter, decisions rendered by various superior judicial authorities are delved into the matter and respected, unmindful of the facts that the appellants' claim is for seeking 12% interest that too from the deposit date, on grounds of payment of duty allegedly made under a mistaken belief of law (which amount has since been refunded to the appellants) (though erroneously admitted, "to be paid within three months from the date of filing of the refund application"). The basis, however. for the appellant making the said plea are certain precedent decisions passed by the Tribunal. The same are as listed and discussed hereinbelow. (1) Raj Construction Company v. Commissioner of Central Excise & GST [F.O. 51743-51764/2025 dated 11.11.2025] (2) Meenu Builders v. Commissioner of Central Excise & CGST [2025 (31) Centax 356 (Tri.-Del.)] ....
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....OL-932-CESTAT-CHD.] (iii) Ebiz Com Pvt.Ltd. v. Commissioner of Central Excise, Customs & Service Tax [2016-TIOL-3240-HC-ALL] 90. It be noted that all these cases directing 12% interest payment to the parties concerned, pertained to where the assesses had deposited various amounts at the time of the investigations being undertaken in the matter or at the instance of the authorities and after a prolonged litigation the amount refundable was held in favour of the assesses as payable to them. The said background was thus also the basis of the directions issued for interest payment @ 12%. Contrast the factual position with the present matters. Herein, no amount was directed by the department to be paid by the assessee, nor was any investigation carried out by the department, nor was there any major litigation prolonged for several years, accrued in the said cases for claim of the refund amount held payable by the Commissioner(Appeals). In fact as informed by the ld. Advocate, at the time of hearing, payments held due in their favour, were made over to them within a three month window as generally understood in terms of Sections 11B & 11BB of the Act1 and the various departme....
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.... Sandvik Asia Ltd. supra * Riba Textiles Ltd. v. CCE, Panchkule (FO No.60015/2020 dt 07.01.2020 * Pale Agro Pvt.Ltd. supra amongst others 92. The Tribunal also held the part claims, as admissible, to the appellant stating that as per the terms and conditions of the work order, the Rajasthan Housing Board (RHB) "as (sic) deducted Service Tax from payment made" and "deposited with the same to the Government exchequer fulfilling the tax liability under Reverse Charge Mechanism". However, with utmost respect to the said order, decided by the hon'ble Single Member it may be pointed out that it falls short of the mandate in law, where it is incumbent upon the refund seeker to documentarily establish that such Service Tax was actually paid by the refund-seeker. No authority howsoever high and mighty, is enshrined in law to give a complete go by to the statutory provisions. Any work order issued, certainly can be no reflection of tax deducted and at best can merely signify the intent. It undoubtedly can be no replacement for the warrant in law to establish actual debit of duty. As stated earlier, the Tribunal therein had relied upon its earlier decision in the case ....
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....a) or even the present matters. Thus relying on the said cases to determine the outcome of the present matter is like comparing apples to oranges, that is comparing the un-comparables and is certainly out of context. Moreover the KVR Construction case has been distinguished and extensively commented upon by the Division Bench of the hon'ble Bombay High Court in the Andrew Telecom case supra. 94. Another case relied upon heavily by the ld.Counsel was the Tribunal's decision in the case of Parle Agro Pvt.Ltd. v. Commissioner of CGST, NOIDA supra. Though I have dwelt upon this case law, earlier in the order, however in keeping with the cliché that it is important that justice is not only done but also shown to be done, it may be worthwhile to reproduce the following paras of the order for a greater appreciation of the decision and background of the Parle Agro Pvt.Ltd. case. Thus to place them on record: "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. S....
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....n and at the time of entertaining the stay application. 41. In view for the aforesaid decisions, and the fact that the rate of interest varies from 6% to 18% in the aforesaid Notifications issued under Sections 11AA, 11BB, 11DD and 11AB of the Excise Act, the grant of interest @ 12% per annum seems to be appropriate" 95. In respectful disagreement, when offering a comparison of the present matters to that of the Parle Agro Pvt.Ltd. supra case, it be pointed out that the present appeals are indeed not a case of "Payment Under Protest" nor that of a "Revenue Deposit", as was the status in the Parle Agro Pvt.Ltd. supra case. The observation of the Tribunal in Para 33 of its order in the Parle Agro Pvt.Ltd. supra case constitutes the basis for the Tribunal to delve into Sections 11AA, 11AB, 11DD etc. of the Act, and to conclude its findings, as arrived at in that matter. 96. The present appeals are indeed nowhere akin to the said circumstances and indeed are a case of self-assessment and voluntary payment and not of any coerced "Revenue Deposit", sought from the appellants. I therefore hold that the facts of the present cases are clearly distinguishable and cited cases o....
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....ell, both decided by Hon'ble Delhi High Court and the jurisdictional High Court for this Bench of the Tribunal. It therefore is also bewildering that in certain cases (some of which were cited by the ld.advocate) and in utmost respect to those citations, this Tribunal has ordered for interest payment from the date of deposit at a rate much higher than the notified rate of 6% and overlooking the express provisions of law and the decisions of the superior jurisdictional courts in the matter. Ad Nauseam it be reiterated that merely because a Constitutional Court in a given context had ordered payment of interest @ 12%, it does not mandate the Tribunal to go beyond the statutory contours in arriving at such a decision and so ordering. Such artificial justification, as cases pertaining to deposit of tax/duty, payments made under protest or during the course of investigations, or beset with prolonged delay etc., would not fit into the category of cases, as could influence the present appeal. 100. Following the aforesaid discussions and the judgements of the hon'ble apex court and the hon'ble High Courts as adverted/referred to in this order, I have no hesitation to hold that under the....