Custom, Excise & Service Tax Tribunal
Kutch (Gandhidham) vs Deep Construction Co on 26 June, 2018
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.ST/10314/2018-SM
[Arising out of OIA-KCH-EXCUS-000-APP-140-2017-18 dated 18.12.2017 passed by the Commr. (Appeals)
Rajkot]
C.C.E. Kutch (gandhidham) Appellant
Vs
M/s Deep Construction Co. Respondent
Represented by:
For Appellant: Mr. G. Jha (A.R.) For Respondent: None CORAM:
HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) Date of Hearing:11.06.2018 Date of Decision:26.06.2018 Final Order No.A / 11273 /2018 Per: Ramesh Nair The issue involved in the present case is that whether the appellant is entitled for interest on refund of pre-deposit made during the investigation of the case, after three months from the date of application for refund or after three months from the date of communication of the order in terms of Section 35FF of Central Excise Act, 1944.
2. Sh. G. Jha, Ld. Superintendent (AR) appearing on behalf of the Revenue (appellant) reiterates the ground of appeal. He further submits that the refund is in respect of deposit made during the insertion of Section 35FF, therefore, the interest provision of Section 35FF in case of such deposit shall apply. According to which the interest is payable only after three months from the date of application for refund. In the
2|Page ST/10314/2018-SM facts of the present case, the refund of deposit made during investigation was sanctioned within three months from the date of application for refund filed by the respondent, therefore, no interest is payable.
3. None appeared on behalf of the respondent.
4. I have carefully considered the submissions made by Ld. AR and perused the records.
5. On perusal of the impugned order I find that the Ld. Commissioner has considered the refund of interest in terms of Provisions of Section 35FF which reads as under:
"35FF. 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 stayed by a superior court or tribunal, there shall be paid to the appellant interest at the rate specified in section 11BB after the expiry of three months from the date of communication of the order of the appellate authority, till the date of refund of such amount."
6. From the above Section 35FF, it is clear that whatever deposit was made shall be considered as pre-deposit and the refund of the same is governed by Section 35FF. Section 35FF does not discriminate to deposit made prior to enactment of Section 35FF or thereafter. Therefore, for deposit which is to be refunded shall be governed by Section 35FF. When the refund arose consequence to the order passed by this Tribunal in appellant's demand case, Section 35FF was very much in existence. Therefore, any refund of pre-deposit shall be governed by Section 35FF during the relevant period. Section 35FF clearly stipulates that if the refund is not granted within three months from communication of the order by the Appellate Authority, unless the
3|Page ST/10314/2018-SM order is stayed by higher forum the Revenue is under obligation to pay the interest from three months of the communication of the order. Therefore, the date of filing refund application is not significant in the present case. Accordingly, I do not find any infirmity in the order of the Ld. Commissioner (Appeals) granting the refund of interest on refund already sanctioned. Therefore, the impugned order is upheld and the Revenue's appeal is dismissed.
(Pronounced in the open court on 26.06.2018) (Ramesh Nair) Member (Judicial) Neha