Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S. Afcons Pauling Joint Venture on 10 December, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 3513 of 2006 - Ex (SM)
Excise Cross Objection No. 256 of 2006 - Ex (SM
[Arising out of Order-In-Appeal No. 141/CE/JAL/2006 dated 31.07.2006 passed by Commissioner of Central Excise (Appeals) Jalandhar, Chandigarh ]
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
Commissioner of Central Excise Appellants
Jalandhar
Vs.
M/s. Afcons Pauling Joint Venture Respondent
Appearance:
Shri R K Mishra, DR for the Appellants Shri L P Dhir, Advocate for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing /decision: 10.12.2014 ORDER NO. FO/ 54777/2014-Ex(SM) Per Ashok Jindal :
Revenue is in appeal against the impugned order wherein learned Commissioner (Appeals) has held that appeal filed by the Revenue before the Tribunal is not maintainable.
2. Brief facts of the case that the case was booked against the respondent and they made a payment of Rs.20 lakhs by way of bank guarantee way back in 1994-95. When the matter came up before this Tribunal, this Tribunal also directed the respondents to make further deposit of Rs.13.59 lakhs. Thereafter, case was finally heard by this Tribunal when the matter was remanded for denovo adjudication. In these circumstances, the respondent filed a refund claim of pre-deposit made by them as same was not to be payable by them as confirmed by the higher authorities. The amount paid as pre-deposit was refunded to them in 2003. The respondent claimed interest at the rate of 15% as per the decision of the Honble High Court of Punjab and Haryana in the case of Kandhari Beverages for the period when the pre-deposit was made till it was refunded. The respondent again went to the Honble High Court of Punjab and Haryana and the Honble High Court of Punjab and Haryana vide order dated 24.9.2004 directed the Revenue to pay the interest for the intervening period at the rate of 15% as per the decision of the Kandhari Beverages. The Honble High Court has further observed that relief allowed to the petitioner shall be subject to outcome of SLP pending before the Apex Court in Kandhari Beverages case. In case, the respondent succeeds in the Supreme Court, it shall be entitled to re-quantify the amount payable to the petitioner and recovery the amount excess paid, if any.
3. After directions of the Honble Punjab and Haryana High Court, the Assistant Commissioner calculated the interest at the rate of 15% and paid the amount to the respondent with interest. Revenue challenged the stay order before the learned Commissioner (Appeals) on the premise that as in the case of Kandhari Beverages, Revenue has succeeded, therefore amount calculated by the Asstt. Commissioner be requantified.
4. Revenue challenged the said order before the learned Commissioner (Appeals) on the ground that respondents are entitled only for refund of pre-deposit as per the decision of Honble Bombay High Court in the case of Suvidhe Ltd. vs. Union of India as reported 1996 (82) ELT 177 (Bom) affirmed by Apex Court and on the ground that interest on refund as per section 11B of the Central Excise Act is not payable. Learned Commissioner (Appeals) dismissed the appeal filed by the Revenue holding that same is not maintainable as Revenue has not challenged the said order. Revenue is before me.
5. Heard the parties.
6. I find that in this case, the Honble High Court of Punjab and Haryana directed the Revenue to give the interest at the rate of 15% vide order dated 24.9.2004. The said order has not been challenged by the Revenue before the Apex Court and same has attained finality. Therefore, the ground taken by the Revenue to challenge the order of Assistant Commissioner before the learned Commissioner (Appeals) are not acceptable and learned Commissioner (Appeals) has rightly held that appeal is not maintainable as the order of the Honble High Court of Punjab and Haryana has attained finality. It is the contention of the Revenue that in the case of Kandhari Beverages, the Honble Apex Court has decided the case in favour of the Revenue. Therefore the matter is required to be decided again. In this case the amount of refund has to be requantified. The contention of the Revenue is not acceptable as vide order dated 24.9.2004, the Honble High Court of Punjab and Haryana High Court has specifically directed that in case the Revenue succeeds in Supreme Court, the entitlement of amount of interest be requantified and shall be recoverable from the respondent. According to the said order, when excess refund of interest is paid to the respondent, in that case the Revenue is at liberty to recover the excess amount of interest paid to them. In these circumstances, I do not find any infirmity with the impugned order wherein the learned Commissioner (Appeals) has held that appeal is not maintainable as Revenue has not challenged the order of Punjab and Haryana High Court. Therefore, appeal filed by the Revenue is dismissed. Cross objection filed by the respondent are also disposed of in the above terms.
(dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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