Custom, Excise & Service Tax Tribunal
Principal Commissioner, Cgst-Delhi ... vs Emmar Mgf Construction Pvt Ltd on 7 October, 2021
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Service Tax Appeal No. 50992 of 2020-SM
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Service Tax Appeal No. 50992 of 2020-SM
(Arising out of order-in-appeal No. 171/Central Tax/ Appl-II/ Delhi/2019 dated
13.05.2020 passed by the Commissioner (Appeals-II), Central Tax & Service Tax,
Delhi).
Principal Commissioner of Central Goods Appellant
and Service Tax,
3rd Floor, E.I.L. Building, Bhikaji Cama Place
New Delhi-110066.
VERSUS
M/s Emmar MGF Construction Respondent
Pvt. Limited 306-308, Squae One, Saket New Delhi-110017.
APPEARANCE:
Ms. Tamanna Alam, Authorised Representative for the respondent for the appellant.
Shri Puneet Agrawal & Ms. Purvi Sinha, Advocates for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO. 51873/2021 DATE OF HEARING/DECISION: 07.10.2021 ANIL CHOUDHARY:
Heard the parties.
2. The Revenue is in appeal against the impugned order-in- appeal whereby the interest @ 6% have been allowed on the amount of deposit, pending litigation, from the date of deposit till the date of actual refund.
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Service Tax Appeal No. 50992 of 2020-SM
3. Brief facts of the case are that show cause notice dated 26.12.2008 was issued alleging non-payment of service tax on registration fees/ transfer charges amounting to Rs.1,18,19,212/ including cess for the period 01.04.2006 to 30.09.2008, invoking the extended period of limitation. The appellant was also issued recurring show cause notices for the subsequent period as follows:-
Sl. Demand cum show cause Date Amount Period No. notice No. (Service Tax including cess) in Rs.
1. SCN No. DL-I/ST/ R- 05.02.2010 4,69,400/- 01.10.2008 to IV/RIP/Emaar/ MGF/08 31.03.2009
2. SCN No. DL-I/ST/ R- 27.09.2010 11,78,499/- 01.04.2009 to IV/RIP/Emaar/ MGF/08 31.03.2010
3. SCN No. DL-I/ST/ R- 19.10.2011 36,83,365/- 01.04.2010 to IV/RIP/Emaar/ MGF/08 31.03.2011
4. SCN No. DL-I/ST/ R- 18.09.2012 50,19,861/- 01.04.2011 to IV/RIP/Emaar/ MGF/08 31.03.2012
5. SCN No. DL-I/ST/ R- 08.05.2014 25,62,001/- 01.04.2012 to IV/RIP/Emaar/ MGF/08 30.06.2012
4. The aforementioned show cause notices were adjudicated vide order-in-original dated 27.08.2019, whereas the respondent -
assessee was successful (demand dropped). The respondent filed refund claim on 09.10.2019 praying for refund of Rs.2,47,32,326/- being the amount deposited by them with respect to the aforementioned show cause notices, which was deposited by the respondent vide debit in the cenvat register for the month of October, 2015, was also reflected in the ST-3 return for the period October, 2015 to march, 2016.
5. Vide the order-in-original dated 17.01.2020, the Assistant Commissioner allowed the refund of the principal amount. However, please to reject the interest claim, observed that the Department has 3 Service Tax Appeal No. 50992 of 2020-SM to pay interest, if any, from the date on which Department was not entitled to hold the amount. In this case Department has issued deficiency memo dated 24.12.2019 and requisite documents submitted on 09.01.2020 and the refund application was disposed of on 27.01.2020. There is no delay in sanctioning of the refund claim on the part of the revenue, hence interest is not payable. Interest was not applicable in the present case, as this is neither the case of any pre-deposit deposited for filing appeal, nor the refund claim is delayed. Being aggrieved, the appellant preferred the appeal before the Commissioner (Appeals) who vide the impugned order has been pleased to grant interest @ 6%@ from the date of deposit till the date of refund.
6. Being aggrieved, Revenue filed the present appeal on the ground that under the erstwhile Section 35FF (as substituted by way of amendment w.e.f. 06.08.2014), interest is payable on filing of refund claim, if not granted within three months from the date of receipt of the appellate order. As the show cause notice was issued to the assessee prior to 06.08.2014, the erstwhile Section 35FF will be applicable. It is further urged that the amount deposited in the year 2015 is not by way of pre-deposit, as defined in Section 35F of the Act. Reliance is placed on the ruling of Hon'ble Gujarat High Court in the case of Ajni Interiors vs. UoI, wherein it has been held that if any payment is made as a pre-condition for exercising the statutory right, it can be termed as pre-deposit. However, it cannot be equated with voluntary deposit of Excise duty paid even during the course of 4 Service Tax Appeal No. 50992 of 2020-SM investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. Further, reliance is placed on the finding of the Adjudicating Authority.
7. Opposing the appeal, learned Counsel Shri Puneet Agrawal urges that the issue is not longer res integra as the Division Bench of this Tribunal in Parle Agro (P) Ltd., vs. Commissioner, CGST- 2021-TIOL-306-CESTAT-ALL, following the ruling of the Apex Court in Sandvik Asia Ltd., - 2006 (196) ELT 257 (SC) have held that such amount deposited during investigation and /or pending litigation is ipso facto pre-deposit and interest is payable on such amount to the assessee being successful in appeal, from the date of deposit till the date of refund.
8. Considering the rival contentions, this appeal by the Revenue is dismissed. Further, it is directed that the Adjudicating Authority shall disburse the amount of interest @ 12% per annum forthwith, within a period of 45 days from the date of receipt of the copy of this order, as held by Division Bench of this Tribunal in Parle Agro (P) Ltd., (supra).
9. Thus, the appeal by Revenue is dismissed with directions as above.
(Dictated and pronounced in open Court).
(Anil Choudhary) Member (Judicial) Pant